It's A Matter Of Character

Sports: The Yanks got rid of two of the few who actually were dependable in the post-season (Cairo and Lieber) for people as or more expensive and are question marks. Why? The Mets did well to let Al Leiter go, whose exit remarks the local sports radio station spent half an afternoon complaining about. Nice guy, but on the decline, asking too much, and too divisive. And, I know the NY Giants are no powerhouse, especially under a rookie QB, but even mediocre teams are showing some life this season. Be it having the wrong personnel for their talent (quite possible, which is why the new Mets GM is a promising development) or whatever, last week's embarassment against a weak offense was just sad. Even sader, it is now par for the course.

The whole thing is inexplicable. I remember years ago the first time I had to face a hostile crowd (in my case, nothing worse than a bunch of sales guys and distributors), and I probably did as badly as Rumsfeld. But you learn pretty quickly once you've done this a few times, and what you learn is that even if you can't satisfy all their requests you can keep things on an even keel just by showing some respect, acknowledging that they have good points, and promising to work their issues when you get home. They might not be completely satisfied, but they won't boo you out of the hall either.

Rumsfeld has been doing this kind of thing a hell of a lot longer than I have, and the fact that he apparently still hasn't learned this lesson says something about his character. And it's not something good.

-- Kevin Drum

The basic principle being put forth here is one that I share as a basic philosophy as well. For instance, when discussing a matter with someone that I disagree with in some sense, I still try basically to be polite and accept that the person is not completely off base. Few people truly are, though they might be (IMHO) confused, nasty, or simply wrong. Such individuals sometimes deserve some degree of scorn or rough treatment, but a general "f-you" philosophy is not really the way to go.

If this is how you view things, including when you are in some role of authority, something is wrong. I'm not saying the other side will respect you if you follow Drum's principles, but quite often they will in some fashion. If not, it's not your fault, and this too will be noticed by others.

The Bush Administration, though this is deemed a good thing by some (character, firmness, assurance, knowing what it takes to win, etc.), does not really seem to believe in this principle. President Clinton was someone who acknowledged both sides had some good points; in fact, he was at times accused of going too far in the wrong direction. This might be unpleasant to me on a policy standpoint in certain areas, but it seems to me a good thing given the divisions in the country.

And, surely, he was a good politician, and damned the other side when politically useful. All the same, on a certain level, he was not an either/or sort of guy. Unlike with Rummy or Bush, you didn't get the idea that it was either his way or the highway. Surely, the fact he faced a Republican Congress helped, but it was also part of his very make-up.

This is why that this bunch turn me off aside from their policies. Kevin Drum links up to an unofficial blog of the DLC to show the administration and friends have radicalized moderate Democrats (a class that includes Al Franken of Air America)
At times, I can barely believe how people who seem like fairly moderate sorts, no crazies they, basically think the nation is being run by a party who are putting forth a fraud on this country whose breadth and negative effects make the tobacco companies look like choirboys.

It doesn't really faze me on some level though because the cynicism, less blatant forms of dishonesty, and recklessness is enough for me to agree with the blog that there was simply no "honest" way to justify re-electing this bunch. The fact they were might be depressing and all, but my opinion remains the same. Thus, it is pretty easy for me, since even if the critics are partially right, I'm greatly troubled. After all, I actually do not like a lot of the substantive policies of the leaders, so I'm suspicious to some degree already.

Anyway that blog notes that it is President Bush's participation in the party's myth making machine that really turns him off. Things that do not, though they do some others, include"his swagger, the nicknames, the scriptural references in his speeches, even the anti-intellectualism." Well, his swagger annoys me, given I feel he has not freaking reason to be so full of himself. Others find this petty or sour grapes and respect such lack of humility, though I did think it was considered a good Christian trait.

I don't mind the nicknames per se, since if someone else was doing it, it might be cute. It is annoying given the source, since it suggests a certain triviality that seems to fit the man. The fact he is a man of a certain faith is also fine, though I wish his bunch keep in mind that it is not the only faith (and be more loyal to its precepts). On the other hand, I do not think anti-intellectualism, especially to the degree it is taken, is a great thing in a leader.

But, like my response to Rumsfeld, my dislike does not just grow from the fact President Bush is a sort of pretender to the throne and the party is run by principles that I find simply wrong. No. It does go back to character, which is a fitting term given all the talk about values these days. This bunch simply doesn't have the character I feel is the basic kind that we all should follow. They lack humility, respect, simple fairness, or the willingness to sacrifice some for the better good. It is not always an either/or matter, but the leanings are clear. So, fine, talk about values all you want.

This bunch doesn't have the sort that we should want in our leaders. In fact, they have the opposite, which is why even a less than ideal (substandard if you so desire) alternative was the way to go November 2. The fact this was not re-affirms the thought that moral values and character is not quite what this bunch offers. And, if it is what people truly want, let's point that out and give them some people who can. If it is not what the people want, then we have to show why they should.

In The News

TV Watch: Gilmore Girls was good ... you know, the repeat on the ABC Family Channel; yesterday's 8PM episode was a repeat. West Wing was good though ... Hawkeye Pierce is running for President.

Various tidbits on news items.

It's true that the federal government as a whole faces a very large financial shortfall. That shortfall, however, has much more to do with tax cuts - cuts that Mr. Bush nonetheless insists on making permanent - than it does with Social Security.

- Paul Krugman, taking a bit of time from his vacation

9/11 Commission / Intel Reform Bill: Two members of the US Senate rejected the conference version, including Sen. Byrd who felt it was "stampeded" to the floor. Though I think he very well might oppose it for other reasons, he has a point. Just what is being enacted in this mega-legislation that again is agreed upon beyond closed doors and then voted upon before legislators surely get a chance to read the thing?

Talk Left supported Sen. Byrd, especially more because of various civil liberties issues that the House mostly tossed in. Fred Kaplan over at Slate feels it doesn't do much. And, Secrecy News notes, that unlike the 9/11 Commission's recommendations, its rejection of intelligence budget disclosure.

Me? Not too enthused: it does less than the 9/11 Commission wanted, has various civil liberty concerns including the secrecy issue, and Porter Goss et. al. will still be in control either way. And, the whole process was so skewered, down to the rush to compromise that will bound to lead to some asshole (maybe even from the Northeast) saying that s/he was upset to find out that "x" provision was in the bill, and s/he is trying to change the darn thing. But, you know, time was short, etc. Xmas shopping, etc.

Iraq etc.: It is nice that President Bush finally is addressing some of the bad things going on, though his comparison to WWII is ridiculous. Iraq did not attack us ... Japan did. If we were just "fighting to extend freedom," we were have begun a lot soon than 12/41. Also, Donald "we all make mistakes, though most of us would be fired long before now for making this many" Rumsfeld's "suck it up" reply to the troops was so endearing. Fuck you too, Rummy.

As to the TNR piece on libs and the war on terror, here is one reply that seems to me chock full of good points. I'd add that it also seems to me that both "war" and "on terror" seems to be part of the problem. We are fighting a cause, not just terror, and "war" is an incomplete and in some ways self-defeating way to win the fight. This includes reduction of civil liberties and safeguards because "damn we are fighting a war" ... the cost/benefit analysis at the end of the day however isn't so clear.

And Also: The reforms to the criminally harsh NY Rockefeller Drug laws were far from enough, but better than nothing. And, now justices are dissenting from footnotes (Justice Scalia from two, Justice Breyer from one in a trademark case involving make-up). Is this why the Senate Democratic Minority leader saying he would probably could support Justice Scalia (but not Justice Thomas) for Chief Justice?

These guys must be GREAT bargainers.

Masturbation Goes To The Supreme Court

More Court Stuff: Michael Dorf has a good essay discussing the recent ruling that stuck down an application of the "Solomon Amendment," which involves removal of federal funding to schools that bar military recruiters from campus. I'd note that the arguably overkill nature of the deprivation of funding seems to me an interesting problem. Interstate wine sale wars orals in part involving my own state were also up this week, as discussed here and here. How fitting that I bought a bottle earlier today (at a local store) as a gift.

The city of San Diego (City), a petitioner here, terminated a police officer, respondent, for selling videotapes he made and for related activity. The tapes showed the respondent engaging in sexually explicit acts. Respondent brought suit alleging, among other things, that the termination violated his First and Fourteenth Amendment rights to freedom of speech. The United States District Court for the Southern District of California granted summary judgment to the City. The Court of Appeals for the Ninth Circuit reversed.

The petition for a writ of certiorari is granted, and the judgment of the Court of Appeals is reversed.

[via unanimous per curiam without oral argument]

CITY OF SAN DIEGO, CALIFORNIA et al. v. JOHN ROE concerned a police officer who sold pornographic videos on Ebay involving himself in a generic police uniform. The lower court found this to be activity on his own time and unrelated to his employment because of the generic nature of the uniform and absence of the officer taking advantage of his employer, though the listings did refer to himself being "in the field of law enforcement."

The Supreme Court overruled this latter finding, holding that there was a close enough nexus (connection) to the police department to warrant special regulations specific to the employee. I therefore question the broad headline of this interesting discussion of the case. For instance, some time ago, a fireman lost his job for morals reasons after taking some roles in a few soft porn movies. I do not know if this ruling would apply. OTOH, a police officer involved in a police themed centerfold would likely be affected.

Since the porn videos were "related" to his employment, the government had to meet a less strict test. In spelling out such a relationship, the Court noted: "the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute."

This is interesting, since "debased parody" suggests some sort of commentary on his profession is involved, which would be a matter of public concern. A famous case made into a movie involved a parody somewhat comparable, this one involving drunken incest in a bath-house. We are not talking an extremely high standard here, are we?

Previous case law, as summarized by the Court, held that "the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment."

In cases involving speech related to public employment, today's ruling made clear that if the speech was not related to "matters of public concern," that was the end of the matter. If the speech is some way was "detrimental to the mission and functions of the employer," the speech could be barred, even if the effect was quite trivial. The current case quite arguably was not trivial, but the rule supplied surely covered less clear-cut cases than this.

Just what does "matters of public concern" cover? The Court here supplied some hints: "to inform the public about any aspect of the [employer's] functioning or operation," "an item of political news," and more generally "something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication."

The current case "clearly" does not meet such criteria. It is this defining of "matters of public concern" that the aforementioned discussion suggests makes this case not just an amusing case of the Supremes slamming down a beyond the pale ruling by the Ninth Circuit.

I think the case is limited somewhat by the clear justification for regulating the activity involved, and the Court emphasizes how it is "designed to exploit his employer's image." All the same, to the degree the Court established a new (or clearer) regulation on speech, a summary reversal seems somewhat beyond the pale. Likewise, as I noted above, something cannot really be both a parody of a public position and totally unrelated to matters of public concern.

This would include use of sexual conduct, which arguably is "a subject of general interest and value," though perhaps not as "the Court's cases have understood that term." Thus, though the officer here might not win in the end, not even giving him a hearing goes a bit too far.

Finally, how might this apply to a few cases pending in my area relating to police officers fired for their involvement in racially offensive parade floats? First off, racial parody appears to me a much closer case than masturbation per the "public concern" test. Though the case might be stretched to apply to such cases, I would not be surprised if they were, they are really of a different caliber.

Thus, the government would have to meet the next threshold, namely how closely regulations against such speech or conduct match legitimate government interests. A hard question, especially if the officers were on the floats as private citizens, and really of a different category than this specific case.

But, that's just IHMO.

Plan To Increase Uninsured Raises Red Flags

Tidbits: Is Marisa Tomei really forty already? Oh, look, the Redskins (thanks to the NY Giants) finally scored over 21pts. NYT had an interesting article on how the Supreme Court is impatient with the way Texas courts are trying death penalty cases. The courts encouraging jurors to lie and the instructions that forced them to do so especially caught my eye -- quite bizarre. Last night for Booknotes on C-SPAN ... quite a run, and it will be missed. And, darn, there are a lot of stirfry sauces to pick from!

But money is not simply a choice. ... It's a necessity for all persons, and it needs to be discussed in the same way that we discuss necessities (like air or water) not in the way we discuss choices. ... Taxation is not ... the grasshopper's revenge on the ant, the lazy person's vampiric attempt to live off the industrious (or the well-funded grandchildren of the industrious). Taxation is, instead, a statement of value.

Taxing the rich at higher percentages is a way of saying "We have some idea of how much an American needs to live comfortably, and you are so far in excess of that that we are willing to tax you at a higher rate" ... And once the Christians wake up to that fact (and realize that every time they've been voting against abortion and against buggery, they have received in return tax cuts for the rich and governmental assistance to corportations) there will be more than just hell to pay. There will be taxes.

Some thoughts from a fray Democrat that was more successful in bringing forth the point than many of those who ran for office a few weeks afterwards. And, it shows how economics is as much about values in many respects as allowing locals to use medicinal marijuana is about interstate commerce (or more so), though I feel more comfortable talking about the latter subject than the former.

Perhaps, the message will be heard by some in the party, who really have to go back to first principles, if it wants to rise once again. A basic principle is the idea of a progressive tax system, one that realizes that the rich benefit from the work of those teeming millions that do their work. Quid pro quo. Interrelated. Interconnected. Dare I say moral responsibility? [I dare]

And, the tax deduction for health insurance (an issue called to my attention by another frayster) fits the bill. The suggestion that Bush's "revenue neutral" (aka "there's not such thing as a free lunch") proposal will take this away (along with "considering eliminating the deduction of state and local taxes on federal income tax returns" [WP], which Howard Dean might point to as tax shift) would do so seems to be a perfect opportunity to underline the point. Unless Red Staters like encouraging employers to revoke their health coverage etc.

[the subject line is a bit of framing, of course, but the essay below makes it appear to be an accurate one]

I shall leave the economics to the experts [except when I don't], but the whole issue seemed to this amateur a red flag. And, when you see red, you should stop and be careful ... or stop and be vocal. Whatever fits the moment.

[read the piece that inspired the above here]

Imperial Hubris ... IH Hubris?

Court Update: The latest enemy detainee case (Hamdan) has received a good deal of foreign attention as shown by the number of "EUROPEAN PARLIAMENTARIANS" that signed an amicus brief. This suggests the foreign policy importance of such matters as "United States’ obligations under international law and ... violations of international law inherent in the system of military commissions established to try detainees." Likewise, "despite their divergent political views," they all believed that U.S. actions "undermines the political and moral authority of the United States, and damages the rule of law in a troubled world, if the United States, contrary to its long tradition, fails to uphold standards that it has been so instrumental in creating."

Also, Justice Breyer accepted a request to a temporary stay of the injuction in "Hoasca Tea" Case discussed a few days ago. Apropos Thursday's discussion, this is fairly straightforward, but Supreme Court Blog does use it to supply further discussion on the whole matter. Both of these issues, in fact, are given healthy discussion there.

As I complete this book, U.S., British, and other coalition forces are trying to govern apparently ungovernable postwar states in Afghanistan and Iraq, while simultaneously fighting growing Islamist insurgencies in each – a state of affairs our leaders call victory. In conducting these activities, and the conventional military campaigns preceding them, U.S. forces and policies are completing the radicalization of the Islamic world, something Osama bin Laden has been trying to do with substantial but incomplete success since the early 1990s. As a result, I think it fair to conclude that the United States of America remains bin Laden's only indispensable ally.

Imperial Hubris: Why The West Is Losing The War On Terror by Anonymous (Michael Scheuer) as noted by a review in Salon that I basically am accord with is a bit of a schizophrenic work: Scheuer (he now can show himself, though the bite he uses in the book perhaps makes it better that he is anonymous) is perhaps best labeled a reluctant bloodthirsty hawk. He doesn't want the military, and a rather bloodthirsty one at that, to be our primary weapon. Unfortunately, in his eyes, it shall unless we change our policies.

Policies that he often opposes in a way that makes him sound like a leftist dove.* Thus, we are left with using the force of those he clearly despises, in the promotion of equally unsavory policies, to save ourselves. "This sort of bloody-mindedness is neither admirable nor desirable, but it will remain America's only option so long as she stands by her failed policies toward the Muslim world." In the process, and Scheuer is ultimately a moralist (one that loves to quote Civil War generals and such), we somehow do not destroy what we stand for, but protect it.

I don't quite accept this. The book, from the denunciation of the hubris (and ignorance) that guides our rulers, has a lot of truth in it. For instance, its title ironically is a bit of a misnomer -- the author argues that this is not truly a war on terror but against Islamic insurgents, which is a much more dangerous battle. Likewise, it is unsurprising that someone tasked to study Bin Laden respects the enemy a lot more than our leaders tend to, respect not meaning he's a swell guy or anything.

It means that he accomplished a lot, means what he says, and we better get it through our thick skulls. Furthermore, he and the millions of Muslims that support him in some key way, do not hate us for our freedom or any such bullshit. They hate us for what we do, including supporting corrupt leaders, occupying their holy lands, and contributing to the harm of Muslims worldwide.

Anonymous might not agree with all the conclusions of the guy, but he clearly sees his point. But, since we do not seem to be getting any closer to a real energy policy not tied to Middle Eastern despots or stopping a kneejerk support of Israel, the possibility of change does not appear to be coming any time soon. So, we have to kill and kill again. In fact, our failure to do so right away in Afghanistan as well as not finishing the job just extended the threat.

Not only was trusting locals and so forth to do our bidding stupid (given their history) and cowardly, in general, we should not rely on getting much help in our battles overall. The help tends to be counterproductive, either because of its unsavory nature (e.g. Russia ... who Muslims hate for Afghanstan etc.) or ties our hands. Hands that need free range, including to kill more people. War, it is hell, etc.

There is some degree of truth in all of this, but it can be taken too far. The whole Iraq War, other than sneering at the stupidity of it all (a "Christmas Present" to OBL), is not really factored in. This is problematic to his general thesis for at least two reasons. First, since fighting two wars at once is rather hard, we need help (NATO has a big role in Afghanistan), even putting aside the reality that the United States is not an island that can act willy-nilly.

Second, yes, the fear of causalities since Vietnam has led us to a bloodless policy (for us, which is different now, but in Afghanistan and even in Iraq to some extent, still relatively low causality rates for our side) that cannot result in true victories. Still, there was a reason for such compromise in various cases, including Iraq. This even applies in Afghanistan to the extent that we cannot just reckless kill people on Pakistan soil, or any number of other places where the "insurgents" might be. And, if a good many of the billion or so Muslims are on the side of Bin Laden, just how much killing will we need to do? He makes it sound like there is a rather deep well of support from which to draw.

Also, his hard edge realism exaggerates. Those concern with the treatment of women in Afghanistan are not exactly women liberation extremists, given that country gives Saudi Arabia a bit of a good name in that respect. We might have to accept bloodshed, and lost of life for a good cause is something I can accept as well (think Patrick Henry), but did many in the National Guard sign up for this? So, please tone down all that "they knew what they were getting when they joined" stuff ... the Marines have a different mind-set because they weren't sold the weekend warrior line.

And, accepting involvement in world affairs mixed with old time Washingtonian isolationism is fine (even if we have to accept bad situations), but the Rwandas of the world leads one to question the limits of the principle. Some sort of united effort, including through the United Nations, is necessary in this world. This is so even if it is in need of serious reform and working outside of its aegis in part or full might very well be necessary in various cases. So, we should stop just defaming it and other international institutions, and try to be part of the solution, since we surely are also part of the problem.

Worthwhile book to be taken with a grain of salt.

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* He also denounces the system of leaks and ass covering that currently corrupts the intel and military departments these days, including those involved in Bush at War, which not only showed incompetence but also criminal leakage of important secrets. He does give a nod to Ronald Reagan, though why exactly his administration (consider Lebanon) warrants special honor is somewhat unclear. Finally, the leftist will not quite like his lawless view of battle, but Anonymous does appear to make an exception of sorts for domestic affairs.

Tolerance is So Controversial!

A church (United Church of Christ) creates an ad promoting its tolerance policy to try to build up membership. The major networks, though not FOX, rejected the ad as too controversial (ABC has a policy against accepting religious advertising), though various local affiliates might and cable outlets like ABC Family will air it. The ad does not explicitly deal with homosexuality, but among the people portrayed, are same sex couples holding hands and such.

The meaning of "controversial" is somewhat arbitrary. Political advertising does not apply. Advertising that some groups might very well disagree with, including anti-drug (smoking) advertisements (either their methods or very message), are not covered. And, of course, ads for sex aids, beer, prescription medicines, or feminine products (including for herpes) do not count. In fact, ads with people that are homosexuals are allowed as well, though this sends a certain (controversial) message that homosexuality is acceptable.

But, the promotion of a church (selling if you like) is not acceptable because homosexuality is implied, and the church calls to mind the whole same sex marriage debate. Thus, the rules allow controversial advertisements as well as those that sell not only a product but a certain point of view, which many groups might find quite distasteful. Except when they do not.

"All ads are advocacy; what else is an advertisement if not an opportunity to advocate for your toothpaste or your cause?" said the Rev. Nancy S. Taylor, president of the Massachusetts conference of the United Church of Christ, the largest Protestant denomination in the state. "The ads are about hospitality and a wide welcome. And how that is controversial -- I find that extraordinary. We are stunned."

The movie Kinsey denounces "morality disguised as fact," while being concerned with a scientist that attempts to study the latter. As discussed here, when it comes to abstinence and related education (funded with our tax dollars), Kinsey's concern again raises its ugly head. In fact, as shown by the article and report linked at the end of the piece, the anti-science mentality is much wider than this small example. Rep. Henry Waxman again does yeoman work attacking the problem.

The networks' decision here is not quite the same thing, but it's arbitrary silencing of a point of view much more worthy of an audience than much of the truly controversial b.s. currently allowed [I am plain sick of the advertising shown during Sunday football games ... but no problemo; they do not involve a Desperate Housewife or Janet Jackson.] is not quite that far off.

The Supremes' Mundanely Interesting Case

TV Watch: Gilmore Girls this week was okay, but still rather mundane: sigh. West Wing retained its sheen, though the story line regarding the former Vice President was a bit boring. CJ, including when telling Josh he would not be on a special Japan trip, continued to shine. The current Vice President's aide, however, isn't given much to do but being overbearing in support of a fairly boring character. He started off much more interesting. It was amusing as well to see Al Bundy play the governor of Pennsylvania and potential presidential candidate. Married ... with Children At The White House might be a good show.

A group tried to block the Massachusetts Supreme Court's decision in support of gay marriage by arguing that it interfered with the Massachusetts' right to a republican form of government. The U.S. Supreme Court denied it a hearing, which a Slate article notes received a bit too much attention, since nothing really happened -- the argument was trivial, nothing really changed, and the Supremes did not really look at the merits of the issue.

The Guarantee Clause has received more notice than implied in the article,* but overall, true enough. [The denial was not meaningless, since the parties were effected, but the rejection of a claim no one really seriously thought would be accepted isn't very meaningful, especially given nothing much changed as a result.] But, lack of proper perspective is not only a problem in reporting the law. So, I would not just use it as an example of how the press in some fashion especially perverts legal reporting in particular.

The most recent decision handed down by the Supreme Court suggests the mundane nature of much of the law, which might very well be quite important to individual litigants, but is not quite as earth shattering to the rest of the world. But, this doesn't mean the justices don't find special interest in them all the same.

The headnotes of the decision gives one a taste of the somewhat esoteric question of statutory interpretation at issue:

The 1995 amendment left unaltered the $100/$1,000 limits prescribed from the start for TILA violations involving personal-property loans. Both the conventional meaning of "subparagraph" and standard interpretive guides point to the same conclusion.

KOONS BUICK PONTIAC GMC, INC. v. NIGH, however, had five, count them five, separate opinions. Justice Stevens (with Breyer), Justice Kennedy (with Chief Justice Rehnquist), Justice Thomas (alone) had separate concurrences, while Justice Scalia dissented (no, they aren't always joined at the hip). This suggests that something akin to the blind men who felt an elephant and all got somewhat different readings of what they felt, but all felt the same thing. At least, 8-1.

Justice Stevens opinion referenced an interior debate ongoing on the Supreme Court:

In recent years the Court has suggested that we should only look at legislative history for the purpose of resolving textual ambiguities or to avoid absurdities. It would be wiser to acknowledge that it is always appropriate to consider all available evidence of Congress' true intent when interpreting its work product. Common sense is often more reliable than rote repetition of canons of statutory construction. It is unfortunate that wooden reliance on those canons has led to unjust results from time to time. Fortunately, today the Court has provided us with a lucid opinion that reflects the sound application of common sense.

Others on the Court have a different version of "common sense," including in this very case. This sort of thing ("rote repetition" ... "wooden reliance") is a sort of judicial "doing the dozens" ... slams on each other arising from important differences in judicial philosophy, differences that do not only arise in earth shattering cases or even result in different conclusions. And, if Justice Stevens' interpretative philosophy becomes something of the norm, even in a few states (which are known to be guided by ideas found in concurrences or even dissents), it can be quite important.

Turns out a case with subject matter that might cause one's eyes to glaze over provides a somewhat interesting view into the mindset of the current Supreme Court. One with strong opinions, even when the case doesn't quite justify them.

Or, maybe it did?

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* For instance, it received some cites in Supreme Court cases involving federalism, such as New York v. U.S. Judge Michael McConnell and a few others used it as an alternative means to deal with legislative districting, though Baker v. Carr specifically (again a sort of notice) avoided doing so. And, some have used it as a way to attack anti-gay ballot measures and such. It clearly is a somewhat arcane issue, though perhaps a bit too much so.

Anyway, since I'm on the subject, the most famous use of this issue was probably during Reconstruction, when the Republican Congress used it to defend its strict treatment of the South.

World AIDS Day

And Also: The apparently neverending saga of the Cheney Energy Task Force will again go back to the lower courts for argument in January, 2005. "The National Security Archive along with concerned library, journalist, and public interest organizations today filed an amici curiae brief with the United States Court of Appeals for the District of Columbia Circuit supporting public access to information about the energy task force convened by Vice President Cheney in 2001. The case is vital to preserving public access to government information under the Federal Advisory Committee Act (FACA)." [More]

Today's World AIDS Day. It is apt to underline first word, since the problem is especially troubling in various spots outside the United States. In fact, for a long time, Haitian men were a specific risk group. [Still are, but the categories have been expanded.] Also, AIDS is especially prevalent in Africa, where dangerous sex practices and health care shortfalls clearly do make it a heterosexual disease. The same applies here, as shown by a question during the Vice Presidential Debate involving black women suffering from AIDS.

At home, you do not hear about AIDS as much any more. It is in sort of a holding pattern with various medications allowing people to live much longer and more comfortably, while the disease continues its poisonous ways. For instance, Magic Johnson was diagnosed over ten years ago, just one of many long-term sufferers.

The problem is clearly a major world health problem, but it is also a public morals issue. Now, let me be careful here, since the word "morals" is a troublingly inexact one. There are basically two strands: (1) general agreed upon moral rules that our society lives by and can be upheld by legislation [e.g., equality, duty not to harm others] and (2) greatly disputed moral rules that some feel touch upon or should be in this category, but are best left outside the law.

Much of this second category clearly has religious aspects, such as the abortion controversy, so in my view is a matter of individual belief, not state regulation per the First Amendment. These categories do touch upon the first set in various cases as well as having health or safety issues that also can be regulated by the state.

There is great debate over where morals stop and health/safety begins. For instance, the Bush Administration is a strong backer of abstinence education in schools, including not funding those programs that do not strictly limit themselves to this area. This is seen by many as a health concern as well as a morals matter because the alternative might encourage teenage sex (this is often on par with saying not having diet orange juice will encourage overeating).

The other side argues that morals, a general opposition to sexual conduct in various instances, are blinding the public policy makers. The ABC [abstinence, be faithful, and condoms] route and so forth is a more realistic strategy. This in fact is also the moral way to go because it often stops teenage pregnancy and STDs.*

But, back to the first issue of "public morals." Public education (and I mean this in a broad sense, not just as involved in schools, but society overall) in matters of sex and relationships in general should not just be a matter of let's say mechanics. This is a woefully underinclusive way to teach the subject, just as the bare stating of historical facts without discussion is an incomplete (if, sadly, typical) way to teach history.

Education includes learning how to be a good adult citizen, which includes a certain moral component. For instance, a student might learn that our forefathers did not think the "we have the power, so we can do what we want with the power we have" philosophy of government is the best one. Likewise, hopefully, things such as respect, due care, and forethought are being taught in schools today.

And, the connection to such "moral" rules to romantic and sexual relationships is not hard to gauge.

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* The W Effect: Bush's War Against Women, edited by Laura Flanders includes some hard-hitting essays on this less well-known and discussed aspect of his policies. They also include anti-abortion provisions so broad that even the discussion of the matter is liable to result in the cut of funding, even if the organization's general purpose is to provide family planning services that are unrelated to abortion.

Likewise, the administration's tendency to ignore science it doesn't agree with is shown by how it avoids studies that show abstinence only programs do not tend to work that well. As with its pushing off of people that don't agree with them from bioethics panels, this ultimately harms the efforts of public health and safety while in some real sense being a piss poor version of "public morals." And, one does not have to agree in full with Harmful to Minors author Judith Levine to see the truth of this fact.

Pair Of Cases: Pot and Solomon

One more thing ... Justice Breyer is Congress' best friend on the Supreme Court, supportive of giving it a wide berth, even if a straightforward reading of the Constitution calls into question its use of power [this even applies in some cases to matters of the First Amendment, like indecency regulation]. Therefore, those who support the local option method of medicinal marijuana regulation are not likely to get his vote. For instance, Justice Breyer suggested the patients petition the FDA ... I mentioned how this has proven fruitless. [For instance, after the argument, some anti-marijuana suit offered this option, but slyly slipped in that "they won't, since they know they will fail." Yeah. Ok.]

Justice Breyer also quipped that medicine by regulation is better than medicine by referendum. Cute, but referendum is a way for the state to establish regulation. If we allow delegation to a federal agency, whose own administrative judge noted there is evidence of medicinal value, why not to the people themselves? The Court should focus on the division of federal/local power, not the policy concerns involved. And, the feds would not suddenly okay California's policy if it was passed by the state legislature. Who, by the way, pass rules regulating medicine (e.g., licensing doctors) all the time.

More on Medical Marijuana: Some good background materials on the medicinal marijuana case can be found here, while some interesting thoughts on the medicinal side can be found in various posts by this person. As to the likelihood of success, not only are many quite pessimistic, some question if even one justice will vote for the patients!

Mark Kleiman, who is involved in drug policy, is quite cynical about the government's Commerce Clause argument, and reminds people how the government has blocked attempts to research the drug. OTOH, he too doubts the government will lose, and is cynical about the medicinal marijuana advocates bona fides (are they really serious about trying to get medical research? but you just said it was blocked!)

A couple other things. The patients' advocate was Randy Barnett, a libertarian sort who I saw in person discussing his latest book. He has an interesting if somewhat extreme (not necessarily bad, but not mainstream, let's say) view of federal/state power that as a whole would not likely get more than one vote (if that: Justice Thomas dissented in the sodomy case) on the Supreme Court.

The person that he calls to mind is Lawrence Lessig, who managed to get two votes to support his view of the Copyright Clause (regarding extending copyright terms repeatedly and for really long terms). The fact both were right that Congress was stretching their powers way too far both on policy and constitutional grounds is nice and all. But, what will it result in way of votes? Sure, even many Red States either allow medicinal marijuana use or supported the right of states to so choose, but this bunch is not always that consistent.

I also saw the comments to the press after the oral argument. One of the patients noted she was once prescribed Vioxx for her pains, which actually has been shown to be lethal. She really shouldn't have compared medicinal marijuana to aspirin, though overall she tried to argue the limited nature of the effort. The main patient's doctor, coming up after an anti-drug warrior (are they against all drugs as medicine or just those that have been shown to be relatively weak?) that made a snide remark about no physician supporting such use, was pretty good. Did his ponytail give him away? Or, perhaps his failure to avoid the issue of medicinal heroin?

But, I guess such concerns boil down to politics, not medicine: important, but on some level besides the point. We aren't on that level though, are we? For instance, one aspect of medicinal marijuana that probably gives it a bad reputation is the idea that it causes a high. Many users argue that this doesn't occur, but if it does to some extent, so what? Many drugs have side effects, some rather horrible, and this one is arguably quite beneficial.

Solomon Amendment: The Third Circuit decided that law schools that bar military recruiters because of the military's anti-gay policies (allowing them on campus is interpreted by many to violate anti-discrimination policies) cannot be deprived of federal funding.

I find this a troubling decision. Putting aside that I think the anti-discrimination reading is a stretch (equality trumps free speech? just allowing the recruiters while strongly criticizing the military's policy equals support?), why should the government be forced to fund schools that refuse to support the military? Sadly, the military's policy has not been held to be unconstitutional. And, these days more than most, the government has a strong interest to promote military recruitment.

Also, free speech and associational rights do not bring with them a blanket right to funding. This is especially the case when the state has a strong legitimate interest that the school is hindering. I'd add that keeping out groups you oppose on ideological grounds does not really further free speech overall, though it might promote academic freedom (the two are not necessary the same thing). And, as far as it goes, the trend suggesting speech rights also brings funding rights (even if state funding of religious publications or scholarships to study to be a minister are involved) has just been taken too far.

The dissent is right.

A True Opposition Party

Interesting: The road to Abu Ghraib is set forth by Joan Dayan's law review article on the meaning of "cruel and unusual," including how members of the "Justice" Department and such took part in the movement that "redefined the meaning of torture and extended the limits of permissible pain." Unpleasant reading. And, what was Julie Roberts thinking with those two names? No wonder her twins weren't given her last name!

Joshua Marshall puts forth this challenge: "whether the Democratic party can embrace a true, rather than a cosmetic, agenda of reform and whether Democrats, after ten years out of power in Congress and four years in exile from the White House, can start acting like a true opposition party."

One option supplied is "public access to legislation," which would give the public at least three days to examine pending legislation ... at the very least, we should allow Democrats in Congress such a right! The little gems like the power to examine tax returns that were found in recent omnibus spending legislation makes this sort of power quite important. Another related reform would be to divide up such legislation into small chunks, which along with the time to examine, was how things used to be done before the current hordes came into power.

I'd also toss in my interest in the "Draft Dean" to DNC chair movement, a position perhaps more suitable to him than presidential candidate. The discussion over at Orcinus (thanks BTC News for the link) also links to discussions on rural concerns, which can be a progressive gold mine, if properly handled.

It also is useful to recall that Purple Stater Sen. Reid now heads the Senate Democratic Caucus. Toss in newcomers from Colorado and Illinois (whose fellow senator also moved up the leadership ladder), and the possibility for a Midwest/Southwest surge is not completely out of the question. The chances are there, and the mess the Republicans and the ever growing "yes brigade" in the Bush Administration are making for the country makes them all the more essential.

Overall, I would also note that the venom some on my side tosses out there on their opponents troubles me. I know some of these people that are apparently immoral bloodthirtsy "Repugs" that are given about the respect of your average cockroach by the most strident of the bunch. Not to be too wishy-washy about the whole thing, but such feelings are a tad exaggerated, though we cannot ignore the truth in the charge.

After all, we are talking about many of the same people who elected Bill Clinton and made it possible to have (I couldn't believe this when I read it) something like fifty more Democrats in Congress back in 1994. Or, were among the over fifty percent that felt things are going badly. In other words, they are not only our fellow citizens, but part of our future vote pool. If, that is, the Democrats can manage to take advantage of the situation.
For instance, now that the shoe is on the other foot, the Republicans in Congress desire to nationalize many things that might very well be best left to the states. Their tendency to do so in matters of morality, has been if anything overdiscussed. Another example are attempts to federalize tort liability rules, including by providing special protections for gun manufacturers.

The trend, most recently in blue state Illinois, against such suits suggests that such legislation is ill advised. The Second Amendment might protect gun manufacturers, but it also might equally suggest a freer hand for states to regulate them. Trends in the courts and various ballot measures also suggests states should have flexibility on the matter of medical malpractice. Or, of course, medicinal marijuana.

Thus, home rule along with the excesses of the majority (minority?) might very well be a gold mine for Democrats. It's the circle of political life: the other side was quite successful using such tools; now it is our turn.

Plame and Ukraine etc.

Medicinal Marijuana Preview: Angel Raich provides a sympathetic face to those who want states to be allowed to authorize medicinal marijuana use ["obtained from within California, without any cost or commercial transaction"], especially given her negative response to Marinol (the pill with THC). A white, conservatively raised mother, Raich is "partially paralyzed, in constant pain from multiple disorders", and "keeps 98 to 100 pounds on her 5- foot-4 frame only by gorging on high-calorie foods and using marijuana to maintain her appetite." It are people like this who our federal government wants to make a criminal.

Valerie Plame Update: The Washington Post recently had an article discussing the latest developments in the investigation of the alleged outing of a CIA agent by those in the Bush Administration. The key matter of debate now appears to be when the information was released, since "there is little doubt that some White House aides circulated the Plame story a week after Novak's column appeared, in an apparent effort to cast doubt on Wilson's credibility." This might be rather crude, to put it nicely, but it does not appear to be illegal.

A violation of the Intelligence identities Protection Act would require a deliberate exposure by a government official before the matter was in the public domain. Since Robert D. Novak himself said that he received information from inside the administration, this surely occurred, unless the person can claim they didn't know "the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States."

But, finding a smoking gun on that latter issue apparently is much harder than the former, notwithstanding the fact the political immorality (though assuming certain individuals in the administration have shame is not something I would bet a meal on) of both is altogether clear.

"We cannot accept this result as legitimate because it does not meet international standards and because there has not been as investigation of the numerous and credible reports of fraud and abuse."

-- Secretary of State Colin Powell, qtd by NYT

Ukraine Election: The coverage of the allegations of a crooked election in the Ukraine has generally held back making Bush v. Gore comparisons. It is nice that the U.S., Russia's sympathies for the "official" winner notwithstanding, has spoken out against the voter irregularity. The fact they did so is notable, given their responses to attempts to overturn popularly elected leaders in both Venezuela and Haiti. The speed of the response also helps, especially in comparison to the wishy-washy comments before Iraq invaded Kuwait.

As Jack Balkan quipped, life might be easier for the current leadership in the Ukraine if Diebold or some other "no printout" voting system was used. The acts of our Congress and Supreme Court also suggests the Ukrainian Parliament and Supreme Court need not have given votes of non-confidence, which might very well lead to another election since the current one did not match the will of the people. Were cries of sore loser or politically biased judiciary raised as well? After all, both countries had divided forces with emotional reactions to the results, though in the Ukraine the "loser" got a lot more support from his government.

I know the two situations have their differences. The point remains that the appearance of impropriety on our side, as well as some substantive evidence, provides too much fuel for such comparisons. This is just plainly unacceptable, though too many people clearly do not give a damn.

Football: Though a battered NY Giant defense did a good job holding back a top level Eagles offense, the rookie QB showed his inexperience, and couldn't take advantage of repeated scoring opportunities. A blocked punt gave the Eagles the opportunity to put it away in the Third Quarter. The NY Jets had another messy game vs. Arizona, and like the last one between the teams, it was a low scoring affair (13-3) with a back-up QB involved (and a third stringer for part of the First Half).

Overall, there were a good many interesting games. Those offensive powerhouses of Cleveland and Cincinnati scored a combined 106 points (seven shy of the NFL record). Buffalo (vs. allegedly superior, but falling hard, Seattle), Carolina (winning a battle of subpar former Super Bowl teams), Houston (vs. the Titans), Miami (winning the battle of the losers), and Oakland (vs. 11 point favorite Denver) all managed to win.

The Oakland/Denver night game (in the snow) was an apt finale on the day. Because of a blocked extra point and two failed two point conversions (suggesting yet again the principle of "go for one" early), Oakland had to block a medium range field goal at the end of the game to win 25-24.

And, there is still the St. Louis/Green Bay game tonight! Go Cheeseheads!

Facts: They Are Such Complicating Things

Finding Neverland: This film is a fictionalized but apparently still fairly true to life account of the inspiration behind the play Peter Pan, one which (much thanks to a wonderful performance by Johnny Depp as JM Barrie) does a good job exploring its inspiration: the spirit of imagination mixed with some more somber elements of the characters' lives. Kate Winslet, one of my favorite actresses, is also among the cast, which is a fairly good inducement to watch as well.

I recently referenced some comments I wrote concerning a NYT article on a Bronx judge's holding that turned out to be partly based on mistaken facts. He allowed for a limited exception to the requirement of actual face to face testimony when certain 911 tapes are involved. The actual tape in question was not of the witness, however, and the case for various reasons was ultimately dropped.

As noted by Discourse.net, this reliance on questionable facts is not only far from uncommon, but is not necessarily problematic. After all, the ruling decides a matter of law, which future courts can apply to their own facts. And, this particular case has become rather useful nationwide. For instance, as someone apparently familiar with the situation informed me, in this particular case it was "the tape or nothing," since local policy is not to force nonconsenting victims of domestic violence to testify.

Though this sort of thing does happen a lot, it's useful to note as well that judges often are motivated by certain facts when deciding the law. They might decide things differently, rightly or wrongly, if the facts were different. The facts are sort of a thumb on the scales, so to speak, especially when using certain "tests" that are a bit arbitrary. Judges are known for writing opinions that lean the facts a certain way, which also influences how the judgment is accepted by the public at large. For the specific litigants, this arguably might lead to some unjust results in specific circumstances.

Also, the specific facts in this particular case underlines the value of actual testimony, given the tape in fact was not of the person it was assumed to be. The net result of the case made the problem somewhat moot, but it does provide a warning all the same. A causal reader of the opinion might feel it a good case for limiting a too strong reading of certain constitutional commands, but one who knows the whole story might have a somewhat different view of the situation.

Fine article all around (Discourse.net provides a link), and a search has determined the writer not only has a lovely name, but a lovely ability to write interesting articles. The general public needs such articles to get a better flavor of the complexities of the law.

Rights From Wrongs / Medicinal Marijuana

Rights From Wrongs: A Secular Theory On The Origins of Rights by Alan Dershowitz appears to have grown from the author's previous small volume on the Declaration of Independence in which he attacked the concept of natural rights.* This follow-up (a bit longer, but still quick reading) argues that the best way to "invent" (for he does not before they "exist" in nature to be discovered) rights is to examine the wrongs society have suffered.

For instance, slavery determined that freedom over one's person must be a basic right of a free society, even if we are not exactly sure of the best way to compensate a person for his/her work. This focus on wrongs as compared to ideals for us to strive for is felt by the author to be an easier way to reach agreement, given generally it is easier to accept that something is wrong than to decide how to do things right. Or, as a doctor might say, "first do no harm."

One example that I would use in discussing rights from wrongs is the drug war, a small aspect of which was recently discussed here in relation to use of illegal drugs in a religious ceremony. Oral argument on a case involving medicinal marijuana use in California will be held on Monday (check Slate for the likely Supreme Court Watch coverage of the event). The ultimate question (though I and many of those supporting the patients also support a wider argument) is federalism: does congressional commerce power reach local medicinal use?

The Supreme Court a few years ago held that distributors of marijuana cannot use a "medical necessity defense," but three justices (Justice Breyer did not take part because his brother took part in the ruling below) specifically said that users might be able to raise such a defense. Justice Stevens in his concurrence cited the various ballot measures that allowed for medicinal marijuana use, and said federalism concerns should caution unnecessarily setting up federal/state conflict.

As suggested by one commentator, it is unclear where such patients will receive their supply -- they surely cannot all grow the stuff. Perhaps, if the local or state government was directly involved it would be a different story. The main opinion was purposely narrow in its reasoning, so many questions were unanswered. There is some reason to hope, therefore, that the patients might win.

No matter how it decides, the growing number of states that allow medicinal marijuana use (which someone who is much more conservative than I firmly told me recently should obviously be allowed) suggests that in some small ways at least that people realize the idiocy of the extremes of the drug war. The best way to stop big wrongs is sometimes small reasonable steps, and allowing state experimentalization on this issue is this principle in action.

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* The author provides an interesting and thought provoking discussion in both books, but tries to prove a bit too much at times. Overall, his argument is that the concept of "natural rights" is nonsense since nature is morally neutral. He does note that nature must obviously be taken into account when determining rights, but it is often quite immoral too.

Also, there really are no "self-evident" truths agreed upon by people overall. Since anthropologists have found certain norms that cross cultures (some limit on murder and incest comes to mind), I find this a bit exaggerated, but his basic point is sound. Overall, perhaps the natural rights effort is best seen as "rights that are developed by taking nature into account," which seems to me a worthwhile if somewhat limited value enterprise. [Yes, many twist nature to fit their moral beliefs, but this problem arises across the board.]

Ministers of Justice

And Also: I discuss a pair of some of the several legal matters discussed in today's paper here. See also, TalkLeft's comments on the latest attempt to attack the ICC. As to Thanksgiving Football, Detroit's inability to score touchdowns and stop turnovering the ball finally caught up to them in the closing minutes of the First Half. The Colts did miss an extra point. The Bears lost another QB and the game, but partly because Dallas used Vinny Testaverde in the Second Half. Bad form!

The school [Liberty University], which says its mission is to train "ministers of justice," is part of a movement around the nation that means to bring a religious perspective to the law and a moral component to legal practice.

Are such law schools somehow troubling or even dangerous? After all, they have professors apt to make remarks such as: "Something that is contrary to the law of nature cannot be law." Likewise, many have trouble getting accreditation, which is liable to get you in trouble when trying to obtain a law license.

One discussion (linked by Eugene Volokh) basically says no. Though someone totally guided by "God's law" surely isn't fit to be a judge, the law schools in general just provide another point of view -- a "Christian Legal Movement" of sorts. And, for those worried about judges guided by the Bible alone, many can be found that go to your run of the mill law school. True enough. The accreditation is troubling, but also probably an equal protection / viewpoint discrimination suit just waiting to happen.

Furthermore, many liberal law professors do what Liberty University professors do: they teach the law, but also suggest what the law should be. If they only do the latter, yes, something is wrong. So, though a law school so dominated by one viewpoint is troubling to me on some level, I think it probably adds to the overall "school of ideas" in the long run.

The bloggist, however, throws in a shot at liberals (and Roe; very tiring) who support a "living Constitution." These individuals, so it is claimed, should realize that the open-ended nature of their philosophy raises the possibility of conservatives motivated more by personal preference than the "law" itself. So, Justice Scalia is right that textualism and originalism (he is no pure textualist, given his Eleventh Amendment jurisprudence, and he doesn't claim to be) is the best way to go.

As discussed by Justice Breyer at the end of an interesting speech on the Constitution and "active democracy," this is just plain silly. Anyone who is honest about Justice Scalia's* jurisprudence would know that as well -- both textualism and originalism opens up the way for loads of personal ideology to "infect" one's interpretation of the Constitution (and law in general).

Furthermore, I'm always tired of those who use Roe as their whipping boy. Legal Fiction, a progressive blog, also is strongly opposed to the opinion on "textualist" grounds. As suggested by quite a few commentators as well as (if not explicitly) later Supreme Court opinions, it can quite easily be defended on textualist grounds. I find it at heart a religious freedom (disputed moral/religious doctrine) and equal protection matter with a few other (textual based) things tossed in as well. Finally, at least two of justices who voted to uphold the right to choose an abortion are personally opposed to the practice.

If those who overly rail against religious law schools are somewhat biased, their critics are not free from blame either!

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* Justice Scalia included masturbation as one of the acts that a state might ban on moral grounds. Therefore, maybe he is the one specifically concerned about an appellate ruling now being examined by the Supreme Court. It involves a male police officer who lost his job when it was discovered that he sold porn videos of himself masturbating in a generic police officer uniform.

The appellate panel voted 2-1 (two women vs one man!) that the district court judge might very well have not properly respected his freedom of speech on his own time. SCOTUSBlog has the link.

And also ...

Federal Budget Tidbit: A potential boon for Bush, $2 million is set aside in the latest federal budget bill for the government to try buying back the former presidential yacht Sequoia. The boat was sold three decades ago, and its current owners say the yacht is assessed at $9.8 million and are distressed by the provision. Furthermore, it is unclear (since such budget matters aren't generally like discussed or often even read by members of Congress) if the President wants the thing or what he will do with it.

Not quite as bad as the mysterious "hey it's not our doings" proposed provision giving members of Congress the right to look at our tax returns (Talking Points Memo has a running commentary, perhaps a bit too cynically), but surely up there on Sen. McCain's list of "reasons why drunken sailors love our federal budget process." Actually, it sounds like something one might do when drunk and free with one's money.

Various Bits: Could Blue States Secede?

Gadfly is an interesting blog with some very good discussions on it from a progressive/liberal p.o.v. One recent piece discussed how voters' low expectations and cynicism of politicians ironically helped someone who headed the system a majority felt was going in the wrong direction. I know such a voter, so fully believe in the concept. Of some solace, strong/outspoken progressives do appeal to many of these voters.

The Imperial Hubris author was on C-SPAN today, his name now widely known, and "Anonymous" will probably be off the next edition. I have the book and will probably comment on it when I get around reading it. The author criticized neo-cons, so it should be good. Lol.

Happy Birthday ... William Buckley Jr.

And, again, Happy Thanksgiving!

Pre-Thanksgiving Thoughts

Bush Pardons (Turkey Edition): I find the saving the practice of the President giving a pardon to one turkey for Thanksgiving (oh, the possible jokes applicable these days) a stupid practice. West Wing had a bit about it as few years ago in which CJ could not decide what turkey to choose for the privilege, finally feeling obligated in saving both of them. WW also had another amusing bit in which the President called up the turkey hotline to learn proper cooking techniques.

Anyway, such is sometimes the state of affairs when we no longer look at these animals as purely foodstuffs (Charlotte's Web and Babe highlight this theme, though children are likely to have hot dogs soon afterwards). I guess the whole thing started as a way to have a "national turkey," a sort of symbolic bird for the holiday. Fine enough for the lucky animal, I guess. Oh well. Does Alberto write the memoranda for these pardons too?

Football: Nothing says Thanksgiving more than mismatched football teams playing on short rest. John Madden no longer has the duty to bring out the mutant bird (multi-legged), but Dallas/Chicago does have a "evenly matched subpar team" flavor to them that the Colts/Lions do not quite have. One hopes that unless the mess down in South Carolina (who do they think they are? basketball players?), there will not be any fighting.

Though the refs didn't control the situation (extended fight, oversetting penalties), the teams did decide to turn down any bowl options (at 6-5, this is a bit sadly, an option). And, the retiring coach of the Gamecocks apologized during his valedictory remarks. This shows some more class than their new senator does when talking about single mothers/lesbians who happen to be school teachers (Sen. DeMint's advice? fire 'em!). The basketball authorities also came down hard on the infantile sorts on that end. Next, how about some real penalties on baseball players ... you know, something a bit more than $500 fines and paid suspensions for a few days (so tough!).

Thanksgiving: We all have something to be thankful for, though some might feel a bit less thankful than others. As to those individuals, I'm sympathetic, since when you come down to it, basically everyone is liable to have something on their side [e.g., I just saw a license plate that felt obligated to label the driver as a "Christian" ... no, not from around these parts]. You know, the old "they are starving in Africa" line. But, seriously, a word of thanks for the blessings I have, such that the aggravations (and there are those too) are just that much easier to bear.

And, remember, turkey isn't the only thing you can eat ... stuff is overrated anyway.

Choosing To Stick To Our Beliefs

Fun Movie: In the tempus fugit department, Seed Of Chucky is the most recent sequel to a 1988 film (the more serious thriller, Child's Play, the mom in the movie now starring in Seventh Heaven). The original is quite good, while the latest two sequels (Bride of Chucky being the other) are quite fun. They don't take themselves too seriously, though there is the requisite amount of gore. The true star of both is Jennifer Tilly, who also plays herself in the current film. I always liked her (she was a great interview on the Tom Synder Show), and she's great fun this time.

Though the discussions of what the Democrats will have to do to regain national power might lead one to think otherwise, it is usually not good to cry over spilt milk, wondering "what might have been." This is hard though given that I think we had a subpar candidate, so will always wonder "what if?" Anyway, as I mentioned a few days back, success in Montana suggests that the Democrats have ways of winning now with Colorado another example, both states from Red America. Toss in such close states such as New Mexico and Nevada, and I think the whole business is just a tad bit overblown.

No matter, we are told that the Democrats have to temper their positions to win, such as the right to privacy, or however one might want to label this bundle of rights. And, bundle it is -- the reason why I have been so fascinated with the area of abortion for so long is that there are so many issues involved, including such things as religion, women's rights, bodily integrity, control of one's health and well being, and privacy in intimate relations.

This is known deep down on some level by both sides. So, frame the issue differently (e.g., Sen. Kerry's "articles of faith"), put a different brand on it so to speak. And, how exactly do they suggest we cut back? The matter is seen perhaps best in the "partial birth abortion" legislation, which President Clinton vetoed and lived to tell about it, which ultimately was a matter of woman's health. I guess we are to sacrifice that for those few percentage points needed to win, huh?

The selective treatment of abortion matters suggests that we cannot take things at face value. For instance, I mentioned recently the abortion pill controversy, which admittedly has not gotten much press overall. At issue is at most three deaths and various negative complications, which is nothing to sneer at, but is sadly not unique when it comes to medication. Compare this to the thousands of deaths apparently caused by the drug Vioxx.

[Correction: Thanks to a comment, I saw the above paragraph was edited incorrectly. A discussion on how "the right to be left alone" appeals to both liberals and conservatives was cut into a sentence involving Vioxx. Anyway, the latter link furthers the argument made by the comment that Democrats should look toward social libertarianism to advance their interests, including the fact a conservative agreed with me. But, see also, the criticism by a conservative (on this issue at least) Democrat.]

On the other hand, when an extra provision is tossed into a spending bill that would block any of the measure's money from going to federal, state or local agencies that act against health care providers and insurers because they don't provide abortions, make abortion referrals or cover them, it is sold as a matter of conscience. [The breadth of the legislation would mean that conflicting state laws, a few of which are more liberal on abortion funding, would be overridden. State discretion is a sometimes thing these days.]

Reflect back to those dead Latinas ... or the medical complications possible in pregnancy. Sorry to be a bit blunt -- just trying to show what's at stake here.* Yes, Virginia, there is a difference when the Republicans are in power. Feel safer now?

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Anyway, the proper soul searching should be left to sports. For instance, sloppy play and a killer penalty toward the end of the game (one that I repeatedly read/heard was "questionable" -- oh, I despise when that happens), one that robbed the Giants (and new QB Eli Manning) of a good shot at getting the lead. But, even if the game (and likely the season) turned on a bad call, the team is flawed enough to blame other factors. For instance, if they could hold Michael Vick and the Falcons scoreless for the Second Half, why could they not hold the Arizona Cardinals to under seventeen points?

Oh well. The Jets won (messy, but we'll take it). And, while watching Brett Farve lead his team back to victory, one wonders -- does anyone love his job more than that guy?

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* I know this might be considered in bad taste, but when this administration and their allies decides to cut back on family planning funding and allow (or direclty further the right of) medical providers to be selective in handling out medical advice, there are real world consequences. See, e.g., some of the essays in The W Effect: Bush's War Against Women, edited by Laura Flanders. The idea that pro-lifers suddenly stop caring about children at birth is an exaggerated stereotype, but one that is not too surprising given their support of such policy choices.

And, I don't know how much the pro-life movement makes a concerted effort at making itself friendly to sympathetic people on the other side. I feel sorry for Feminists for Life and such fellow travelers. Surely, the right to choose an abortion is not the only way to stop the tragic results of certain pregnancies (or unwanted pregnancies overall), though we probably will never exist in an utopia where abortions will never be an important option. And, until we reach this utopia, women for various reasons should have a full (and legally currently have a pretty strong) right to choose whether or not childbirth is right for them.

Quasi-Poll Taxes and Other Election Issues

Stupid Scalia Comments Watch (2000 Election Edition)

Legislation, court rulings, and the Twenty-Fourth Amendment bars the requirement of poll taxes to vote. On the other hand, there might be other quasi-poll taxes out there all the same. Though the matter doesn't seem to effect my area in particular, there was quite a few reports about long lines at the polls earlier this month.

Toss in those who have to spend time on Election Day and so forth to deal with mix-ups and the like, and we are talking about a decent amount of time here. And, time is money, money that affects different people differently. Such a violation in spirit of the bar against poll taxes and the rules in place to uphold an equal and effective right to vote is just one more reason to be concerned about our current electoral system.

Useful, if underreported, hearings were held in Ohio to deal with such questions. In Ohio, where there just might be a recount after all (and Ohio Democrats got off their butts and challenged the lack of one statewide standard for provisional ballots, which was a major problem cited by Bush v. Gore), had many reports of long lines and other problems, which unsurprisingly was especially prevalent in economically poorer areas.

Likewise, when you have poor areas, you often have areas with heavy non-white populations. Though Republicans made gains in the Hispanic community, this still is primarily a Democratic voting bloc, and evidence was shown that they were crudely targeted by some seedy operatives for just that reason. This makes people suspicious of the intentions of the Republican Ohio Secretary of State, yet another reason why we need neutral electoral monitors. The Fifteenth Amendment is specifically concerned about black voting rights, but equal voting rights cross racial lines. Thus, all should worry about testimonials such as this:

I was told that the standard was to have one voting machine per 100 registered voters. Precinct A had 750 registered voters. Precinct G had 690. There should have been 14 voting machines at this site. There were only 6, three per precinct, less than 50 percent of the standard. This caused an enormous bottleneck among voters who had to wait a very, very long time to vote, many of them giving up in frustration and leaving.

To repeat, this is just not about who won. The Civil Rights Movement was not just some sort of get out the vote campaign by the Democratic party. It is about the integrity of the system that is at the heart of our political system. The same can be said about the results so far by those who investigated the vote in Florida. As suggested by the comments to Kevin Drum's latest post on the subject, (1) even though there doesn't seem to be proof of wrongdoing, there surely is clear evidence of voters legitimately questioning the integrity of the system and (2) this is a problem, even though the disputed numbers would probably not change the final results (though, we might be talking some significant numbers here all the same).

So, yes, some who are concerned about this issue have an additional agenda -- they fear that the election was robbed. Some just couldn't believe the result was fairly achieved (hey, I can relate). Again, this only underlines the problem: if a significant number of people don't trust a system, the fact some make exaggerated claims is largely irrevelant. The system is still in doubt, still is faulty, and lacks the proper degree of redundant safeguards that exist in matters rather less important. [A disputed football play is at times easier to review than election results.]

The system is especially problematic when the margin of victory in paper thin, which was the case in several races this year. If no system established by human beings can be without problems, it must at least have a level of trust that quite arguably just does not (or should not, if one is honest about how many actually are worrying about this) exist now. Given the system at issue, this is all rather troubling.

Kinsey

On the whole, Kinsey (on the life of biologist and sex researcher, Dr. Alfred Kinsey) is an enjoyable and well-made film. It is surely likely to be nominated for a few Academy Awards, especially since it meets the "late in the year" and "big biography" (with a period drama, life affirming disability, or other special feature bonus) requirements.

I think one can fairly criticize this or that aspect of it (e.g., Laura Linney as his wife has a somewhat underwritten role; Oliver Platt is an interesting if not totally fitting choice as college chairman), but what are especially notable about the movie are various features that stand out. These would make even inferior movies worth watching, thus makes Kinsey that much more worthwhile.

The movie begins with a well put together set of vignettes that give us a flavor of Kinsey's childhood. The individual scenes are powerful in their own right, but as a whole, they are a feat of biographical storytelling. It also does a great job in getting the viewer into the movie, which is not just about sex studies. The use of black and white in various cases also supplies a nice touch. Also, various scenes during the movie, including one in a gay bar, not only further the story, but also are well crafted overall. The final scene, though some might not totally like it, also is refreshing.

Of course, a movie about a sex researcher (if one who studied insects for much of his life) is largely concerned about sexual matters. And, given its subject, the fact that it breaks the usual rules found in movies is not too surprising. For instance, American movies nearly never show full frontal male nudity (nor women either, but given the usual shots of breasts, the net result is an imbalance), which is not the case here.

In fact, there is a run of the mill sex scene in which the male, not the female, is shown fully nude. The symbolism of just these few scenes alone is telling. Also, the movie plays with our assumptions about sex, including the sorts of women who have the highest sexual reactions. And, in part because of the bisexuality of its subject, the film has some refreshingly open scenes involving such matters.

The viewer is left thinking that we still are quite a far means away from the ideal Dr. Kinsey hoped to promote. For instance, Dr. Kinsey provided sexual counseling to couples at his college. We get a hint at why he is so concerned about doing so when shown the difficulties of his wedding night (c. 1920 ... both were virgins). It is interesting and somewhat amazing given the dominance of sex in our cinema and television programming that the trials and tribulations of the process is so rarely truly handled.

Oh, it is often a subject of humor and all, but usually the typical romantic storyline had the couple at some point going to bed together with little comment ... it all goes ever so smoothly, though their might be romantic complications later on. This is so even when teenagers are concerned, though things have improved on the page (for quite some time, teen fiction often provided some realistic portrayals of all things teen) and screen.*

Not only is this a rather dramatically lacking portrayal of the matter (though I guess it is hard enough for some actors to simulate sexual activity; making it truly realistic might be asking too much of them), it promotes a mistaken message of the reality of the situation. It is unfortunate that Dr. Kinsey would still probably have to teach the course shown in the movie, since sexual education in our schools (and overall, for parents who feel it has not place in the classroom) is still often at a woefully undeveloped state in this country. It is even more so that a matter that Dr. Kinsey (and human experience) tells us is so complex and intricate, so dramatically full of potential, is so often stereotypically portrayed.

The movie resists this to a certain degree, which is one more reason why it is well worth watching.

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* How television handles teenage sexuality has improved, but still is somewhat mixed. Gilmore Girls treated the sexual initiations of two of its characters rather shabbily, especially the embarrassment Paris was put through, but also the quickly unspoken nature of Rory's sexual activities (no change in status to town good girl for breaking up a marriage ... no talk at all). OTOH, the less well-known show Grounded For Life did examine in some detail the planning and unexpected results of the daughter's decision to lose her virginity at sixteen.

Drinking Tea For The First Amendment

Sick Joke Alert: "Not only are the Bush officials who failed to protect the country and misled us into war not losing their jobs. They're getting promoted," Maureen Dowd

A small, but accepted as bona fide, religious group illegally imported a hallucinogen to make hoasca tea for their religious ceremonies. When blocked by the DEA, they argued that the federal Religious Freedom Restoration Act gave them an exception to the generally applicable law. The Tenth Circuit of Appeals upheld their argument for the time being (via injunction), though it was divided on the reasoning.

Judge McConnell, referenced a few days ago as a long term advocate for conservative leaning religious groups, wrote a separate concurrence that in particular focused on why the group could ultimately prevail. [His comments on the technical issue suggests the value of using various disciplines to help interpret the law.]

Professor Hamilton, who strongly is against laws such as RFRA (and successfully argued in Boerne v. Flores that as applied to states, the law is unconstitutional*), wrote a column strongly critical of the decision. A basic problem in her argument is seen early on when she notes: "The Constitution's Free Exercise Clause has long been interpreted to allow neutral laws that regulate conduct - not belief -- to be applied to religious persons and institutions, along with everyone else in society."

This is only partially true. First off, from around 1940 to 1990, the federal courts specifically noted that religious conduct is up to a point to be treated (including when state action is involved) with special concern because "free exercise" does not just include belief. Using state constitutions, various state courts have done the same since then.

Likewise, aside from the fact that speech and associational rights in various ways involve religious conduct, there are various specific laws that treat religious activities in special ways. This includes federal civil rights laws and RFRA itself. Though she might think Flores stands for the broad principle that general laws (even those involving religious conduct) should be treated equally, the federal courts have not so held. Thus, though Hamilton's reading might be somewhat reasonable, it isn't the one currently used by the lower courts.

They read the opinion basically as a protection of federalism, and the opinion's focus on the Fourteenth Amendment (and later opinions used it as precedent for other federalism decisions) makes this appropriate. And, the Supreme Court has not challenged this interpretation, a court particularly concerned with its authority in recent years. [It should be pointed out that other provisions of the Bill of Rights also are applied differently by the states and federal government. For instance, the federal government is required to have unanimous juries in criminal cases; a few states allow less.]

This makes sense because not only did the Supremes specifically note that governments could make religiously based exceptions, the federal government has various powers (other than Section Five of the Fourteenth Amendment) that could be carried out in such a way to include them. So, instead of say including the provision in its spending bills, why not have one big ominibus law? Thus, as applied to the federal government, RFRA is still good law.

The fact that Congress passed the law suggests Prof. Hamilton's concern that the court here had to "second-guess what the people's representatives have done" is somewhat misplaced. Congress quite often passes laws that supplies various rights and privileges that somehow narrow other laws previously passed. The courts then have to balance the various laws and determine some sort of reasonable result. This is what Judge McConnell means when he notes that if one is troubled with the judgments made here, you would also be troubled with a lot more.

And, even under the current somewhat narrow reading of the Free Exercise Clause, discrimination against religious claimants is disfavored. Therefore, Prof. Hamilton's suggestion the church try on their own to get a special dispensation is troubling as well. Why exactly should some religious believers be allowed to use the rather similar hallucinogen peyote but not this one?

To the degree RFRA does away with such favoring of politically successful sects over others, it seems to be promoting clear constitutional commands. If nothing else, being particularly concerned about the matter and reading federal laws in such a way (if reasonably possible) to avoid it, is not something for which the courts should be criticized.

It is also interesting how she suggests those that do so in this case align themselves "with a more liberal agenda" in such a way promotes a judicial activism that "Republicans" hate. No, that doesn't work. First, judicial activism is not something one particular party favors ... boilerplate political arguments notwithstanding.

Second, religious freedom is not just a "liberal agenda" as we found out when examining the attempt by conservative legal groups to protect religious conduct and speech. Everything cannot and should not be so easy divided along liberal/conservative lines. The tendency for many to do so in religious matters in particular is troubling.

Prof. Hamilton is right to argue that it is difficult to carry out a rule that gives religion special benefits that the general public does not enjoy. All the same, we have traditionally considered religion special, including religious conduct. Thus, for instance, Jehovah Witnesses need not take part in pledge ceremonies and during the Prohibition sacramental wine use was allowed. Also, religious institutions are given special allowance to ignore certain civil rights laws as to discrimination by religion and even gender.

And, the courts had some role in formulating and carrying forth such exceptions, especially if the general law specifically required it. Are we to do so selectively? Are we to avoid the problem by suggesting that the sort of free exercise of religion we specifically protect only involves belief?

I guess we can, but it wouldn't be very convincing or equitable.

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* Mark Kleiman, who I have referenced lately on other matters and is an expert in drugs and public policy, mentioned the 10th Circuit case on his blog. The case can thus be accessed from his blog or the Hamilton essay. He noted that he was an expert in the case (he spoke on behalf of the church, though he didn't say so), so felt it improper for him to state an opinion on the matter.

I don't quite know why, though perhaps the ongoing nature of the matter influenced his opinion. OTOH, Prof. Hamilton does not mention her role in the Flores case. In an earlier column, Prof. Hamilton did mention that she is a convert on the matter, which might explain her strident beliefs. Anyway, I think being aware of such background information is generally helpful.

Also, though I do not know if he discussed the matter, cases like this suggest the misguided nature of our drug policies. The either/or tendency that determines that any use of certain drugs must be banned, legitimate religious/medical/other uses notwithstanding, is ill advised and often leads to sad results. And, the policies tend to be arbitrary, thus alcohol was long allowed to native tribes, but not certain hallucinogens. This is a rather ironic result, given the historical record.

The specially regulated nature of the ceremonial use of mind altering drugs teaches something as well -- certain dangerous substances and activities will always be used in our society, so its best to accept those who find ways to do so in a safer way. In respect to this subject, Kleiman's comments regarding needle exchange policies is worth reading.