Harriet Miers: Sorry, No

TV: I caught Commander-in-Chief last night. Has promise -- the cast is pretty good and the story was interesting. I caught some of the creator's work, including a couple movie involving presidents, and he was talent. Seemed like a lot of commercials though. I also have caught (via syndication) DaVinci's Inquest on WGN (it is also on once a week at 4AM on CBS), the investigation show. I like it too -- the continuing story lines, lead performances, and overall point of view are appealing. Got to love those Canadians. It is on 3 P.M. and midnight (my time), so it's good for taping or watching at night. Amusingly, I caught the lead in a movie in which he played the owner of some diner.

Harriet Miers. Given that the minority leader, various other Democratic senators, and of course most Republicans are on record finding her satisfactory, it is reasonable to assume that she will be confirmed to replace Justice O'Connor. Various conservatives (and some conservative leaning libertarians) do not like the choice -- they say it is because of her lack of qualification and too close ties to the President (one really does not take the latter too seriously, since it really has not been a problem in the past), but most assume it is because she might be a bit too moderate (at least in social issues) -- and this helps her as well.

It is a reason for Democrats, including progressives/liberals (as has been the case in some blogs), to see it as a strategic bonanza. Maybe, besides not beeing too conservative, there is a reason to piss off conservatives. The glee is only barely under the surface. I recall similar thoughts raised in respect to torture czar Alberto Gonazales being floated as a nominee. In other words, the fact he was involved in furthering detainee abuse was not most important thing. After all, he seems to be pro-choice* and his nomination would cause conservatives pain. Conservatives, especially religious ones, like pain though: they make liberal victimhood look downright minor. You think some libs want it all, when they got more than one can hope for? Think about conservatives whose allies control all three branches.

[A top legal reporter was somewhat annoyed that President Bush announced the nomination on the first day of the term given this basically stole Chief Justice Roberts' thunder -- the first day of the job etc. I don't know if this is a big deal, but the timing is somewhat interesting.]

So, no just pissing off conservatives is not really my concern here. Nonetheless, there is another argument: Roberts along with Miers are not too bad, they are not (heaven forbid!) Scalia/Thomas clones. Roberts, like Scalia, has a history of supporting conservative presidential administration and causes ... this is mainly "the past." Anyway, Roberts seems to support "privacy" (he notes all nine do -- get the idea?) and "substantive due process" (but Rehnquist to some degree did as well, as do even Scalia/Thomas to some degree, the latter at least by another name). Roberts might not have gone overboard about such things -- you know, like Rogers-Brown calling Social Security theft or something, but he seems fairly conservative. One even support gay rights to some degree and be conservative -- just look at Andrew Sullivan.

As to Miers. On the surface, she really does not seem too exciting. First, she is a Bush crony ... in effect, the President's personal lawyer. Their relationship has gone back to Texas, where she was a major player in the legal profession, though no "great voice" by any means. She was a business lawyer, heading up a notable if apparently not elite firm, a firm that had some ethical problem that it is unclear Miers had any direct relationship in. Through her legal duties, some moderate indications come out (such as some support of rights for gays), and the head of Talkleft (if not one of her co-bloggists) basically gave her an endorsement. It is her "real life" experience as a business lawyer that was seen as a plus by Sen. Reid. It plus the crony factor is probably what was the determining factor for Bush -- crony/loyalist and pro-business is his cup of tea.

President Bush also probably relates to her private religious background -- she belongs to a conservative leaning evangelistic church, thus even if some of her public positions are not totally conservative, her morality does seem to lean in that direction. One would think this would not totally rub libs and such the right way -- how it would translate into legal doctrine is unclear. Nonetheless, since she has not been a judge [this is grasped at by some as a disqualification; I am not aware that Frankfurter, Brandeis, and Douglas were unqualified ... Rehnquist, well ... anyway, others like Thomas and his predecessor were barely judges, while some others were state judges that rarely had to deal with some of the more sensitive cases that justices must handle annually], personal belief probably will influence her judgments -- it does for everyone.

I don't like her. I will put my cards on the table: the crony thing rubs me the wrong way. Experience has shown that President Bush is not someone I like as a person or as a public official. Someone whose business was to serve him and who he can relate to is not someone I want as a justice of the United States. I would add that the business crony aspect is troubling too, but damn if he is the President, and something like that is expected. Vote a business crony sort as President, you have to expect that to some degree, right? So, what would trump such concerns?

Someone downright qualified, a big legal mind or someone with public service in the legal field and beyond that makes them a great or at least intriguing choice. Miers really does not qualify, though her accomplishments are respectable. You know, for a lower court judge. OTOH, I do not know if the people who say she is patently unqualified are being totally fair -- I understand their sentiment, but they sound a bit hysterical at times. But, "patently unqualified" is not really the test, is it? Maybe, these days it is. Sigh.

Someone who would basically vote like O'Connor. The fact Miers is 60 helps, though this still can translate (if she is healthy and stays on to an age various justices have in recent years) into about twenty years of service. So, let us not make too much out of it -- still, it helps -- w/o an official retirement age, some limit to Bush's picks is a relief. Anyway, still, what about her legal philosophy? Other non-judges were not really cyphers. One knew where Brandeis, Frankfurter, Thurgood Marshall, O'Connor (state friendly, somewhat conservative, legislative minded), etc. sat judicially speaking, more or less. Frankfurter turned into Mr. Judicial Restraint, which annoyed some of his progressive allies, and Douglas' SEC background did not tell one what he would do in respect to civil liberties. But, he was picked to be pro-New Deal and FDR, and was -- including in the Japanese Internment Cases.

We do not quite know what Miers' legal philosophy is, but one might make some guesses. The best one would be being sympathetic to business -- there is not likely to be a "smoking gun" here given her resume, but this appears logical. She also would by sympathetic to religious believers, being part of the group that wants a stronger mix of church and state. Miers would also be somewhat lenient at least toward executive power, if she is even halfway sympathetic to the mentality of her boss. I am not sure why progressives are happy yet. As to other issues, a reasonable guess might be conservative but more moderate/pragmatic, perhaps Kennedy-like. One does not know her "causes" though, like his sympathy toward free speech, equality, and so forth. So, there is a "black box" there. Again, it is something of a wash.

The final thing would be that ultimately Bush is the nominating party. He would always make the choice. So, the alternatives would not be any better. This is the bottom line of many people -- the idea is that one takes the best one can do. But, I am left with a question: let's say more Dems voted against Roberts, would Bush not vote a pro-business, privately religious, close crony? [Did Reid "deal" with Bush by his symbolic "no" for Roberts in return for Miers?] She seems a pretty nice choice for him, right? Anyway, the cronyism still pops up -- put aside that history has shown that when cronyism is a determining factor, the resulting justices tended to be lackluster. It just rubs the wrong way. This is not the best we can do ... the crony thing just icings the cake.

No. The Senate will probably confirm her by numbers similar to Roberts, though. SCOTUSBlog and some others think not, but if not, I fear the next nominee will be someone we truly will not like. Still, you know what? Some great conservative legal mind that I can respect might do it for me. I am ready for someone that impresses me out of this administration -- the fact their bottom line is personal loyalty and pro-business sentiments do not really do it. In fact, progressives should be concerned about such things too. Call this a "win," if you like ... do not expect me to do so.

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* President Bush is on record that the political atmosphere does not allow overturning Roe v. Wade root and branch. It does allow chipping away, including in the all too under-recognized funding area. The U.S. has gone out of its way to defund family planning programs -- even those primarily concerned with women's health -- if abortion is but one aspect. Think also of the domestic sphere, where abstinence education is federally funded.

In this area, assumingly, educational invasion of parental moral training is acceptable -- as long as the invasion is selectively done. Anyway, the point is that a truly "pro-life" justice is not really the point. The point is to chip away. Likewise, both Roberts and Miers, one at least indirectly thru a spouse, the other directly, is "pro-life."

Leadership Blues

West Wing: The show is okay, but basically has a tired feel to it -- this is better than other shows, like Gilmore Girls, that have a tired feel while being a downer and/or blah, or Family Guy that is just not funny any more -- catching it Sunday, it is almost anti-funny. As to new celebrity guest -- currently the evening co-host on Air America -- playing a political consultant somewhat like herself -- she was again pretty good, but did not really have as much energy as she could have. As to the show's takeoff of the Plame story, their reporter actually is a martyr for a good cause.

Most people are not into the trivia of the modern political landscape as those on the blogosphere, but a quick perusal of the current state of the (Republican) leadership in Washington D.C. should give even the causal reader some pause. Consider:

The majority leader of the Senate is currently being investigated for insider trading and related shenanigans, a majority leader that has not been free from controversy, including (being a doctor notwithstanding) giving a positive prognosis of Terry Schiavo -- deemed in effect brain dead by autopsy reports -- via videotape.

The majority leader of the House of Representatives had to step down after being indicted for his relationship with a campaign finance mess that has already been declared (by a conservative judge that the defense specifically wanted) illegal and subject to fines. Also, he is involved with a chief lobbyist, also indicted ... aside from the fact that someone involved in the lobbyist's business was a victim of a gangland type hit.

Said lobbyist is involved with said majority leader's support of blocking basic employee rights laws in an American protectorate, local businesses subject to lawsuits and such for the laissez faire situation that resulted. A situation that included forced prostitution and compulsion to have abortions or lose one's jobs. There is also the business about crooked dealings with Indian tribes and gambling, with which Ralph Reed (formerly of the Christian Coalition, an organization that is against gambling overall ... I actually heard him say so) was also involved.

The announced replacement of the majority leader was rejected by fellow conservatives for unclear reasons. Said reasons, the subject of some snide remarks on the lib blogosphere, probably has something to do with the fact the guy's um partner is his highly paid aide, with a pay grade higher than most such positions offer ... which also appears to be against ethic rules. But, since, um, he's not married or anything, there is an um loophole. The person that actually filled the position, Rep. Blunt, is part of the same crooked cronyism that got DeLay in trouble. But, this sort of thing is not really too upsetting to many people -- they don't expect much from their leaders anyway. Indictment hits harder.

The presidency. Where to start. There is the incompetence -- surprising only to the clueless -- shown in the New Orleans (19-7 vs. Bills), Iraq, etc. There is the trouble top aide Karl Rove is involved in, including exposing the name of an undercover CIA agent. The top procurement officer that was indicted. Rumors, apparently reliable, that the President is drinking again. Breach of laws respecting use of government funds for propaganda purposes. Officers coming out discussing how they had to seek out senators since there was no clear rules on torture (those involved in said "rules" or lack thereof, are appointed to key positions as well as federal judgeships). And, so on.

But, you lose elections, you must deal with corrupt hacks in key leadership positions. Um ... must double check where that is found in the Constitution. As an aside, the general sentiment seems to be that strongly supporting such corrupt cronyism is not a disqualification to a seat of the Supreme Court -- in fact, as long as the choice isn't too bad (especially if conservatives are pissed off), one can totally live with it. Sell you soul too many times ...

It Is Left To The Tribe (Who Continued To Lose)

Football: A couple years ago, Chad Pennington (Jets QB) got hurt in the preseason and Vinny Testaverde came in to replace him, but took too long to get into game shape (2-4 as a starter). He went to Dallas and did okay with a subpar team. Chad is hurt again, and guess who is back? The third stringer (5-9, that is, five passes of nine in one game -- hey, he was a QB in college -- not a big name school, but come on!) will play on Sunday, but look for Vinny to be back starting again. As another Jets season goes to the wayside, fans will at least have nostalgia.

Update: Indians lost again. They won once (vs. Tampa) since Saturday. The Yanks should send them a gift basket. They still have a shot to get to the playoffs and ruin the Red Sox's season. The NL Wild Card (and the AL actually) will be decided either Sunday or beyond, so the season is not over yet.

Update Two: Indians lost, Astros won, no surprises. Chicago White Sox, maybe, but the As were revamped, LA Dodgers stripped, and the Giants did not have Barry Bonds to September. So, usual suspects won, Padres by default. The Mets (who helped end the Phillies' season) ended tied for third place, 83-79 (about as expected, except for the poor showing of the Marlins). The Yanks lost their one meaningless game of the year while the Jets looked a tad bit pathetic -- the Giants however again scored a lot of points. New no-shot team to root for: the Padres with a worst record than the Mets, but the head of the NL West.

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I am sick of the Yankees/Red Sox. I was sick of them before last year, but I am truly sick of them now. They play, and have played the last few years, about nineteen games a year ... but only in the regular season. As if that was not enough, they repeatedly played in the playoffs ... apparently seven games every year. Well, at least the last two, the seventh game going one way and then the other. Of course, you know what happened last year [Choke! Choke! Choke!]. It made the Cubs experience in 2003, almost expected in Cubs Nation anyway, almost trivial. btw 2003 was the year the Red Sox (and Cubs) should have won.

But, if baseball was fair, the Atlanta freakening Braves would not win the division each year as if the rest of the National League East was akin to Perry Mason's opposition (though Mason actually lost one or twice). Last year was particularly grating since the Yanks ... well, you know. I would not have minded TOO MUCH (it is the 21st Century, just look at the flying cars) if the Sox won in '03, perhaps in Mariano's third inning of work. But, give me a break. And, the Yanks need to pay for such embarrassment. Losing 5-11 games to the Tampa Bay Devil Rays might have helped. But, then they went on a September run against reject competition, and now are tied with the Red Sox. The Devil Rays by the way were their friends in the end -- the Yanks swept their last series and the Devil Rays hurt both the Sox and Indians.

Ah the Indians. They choked too. Still gasping for breath, much like the Philadelphia Phillies (whose playoff hopes are, baseball gods help them, in the hands of themselves and the Chicago Cubs), but on death's door. Why? Oh, a ninth inning error vs. the Kansas City Royals ("hey we were something five months last year!"), losing two out of three (one by 1-0) vs. the Devil Rays, and not able to get a sacrifice fly with the bases loaded in extra innings vs. the Chicago "resting for the playoffs" White Sox. Not only is this a sad situation given how they came back from the dead, but if they do not do something this weekend, the Yanks/Red Sox series is meaningless.

If they lose but one, it is likely that both the AL East teams would get to the playoffs. In fact, the Indians need to win TODAY. You know the team whose bats suddenly are silent. If not, both the only thing that matters this weekend (and yeah, it is not trivial) is bragging rights -- namely, who wins the AL East. After all, without the Indians holding up their end (and they barely done so this week), one AL East team will win the division, one the Wild Card, something that happened in the NL Central and AL West recently (note how the As fell apart last month or so). And, since it really does not matter too much who they play (it might be easier for the Yanks to play the White Sox given Anaheim's bats), the road to ANOTHER Yanks/Red Sox series will be in the bag.

If so, the Yanks have the Tampa Bay Devil Rays to thank. Sure, they played the Yanks tough for most of the year, but hey, that just would make the end result more sweet. And, when it counted, those Rays -- how they will manage would Lou there anymore one just does not know -- were the Yanks friends. Oh, and the Orioles of course -- how they even managed to win one game of the last seven vs. the Yanks is somewhat amazing. These guys were on the top of the AL East this season?

A nod to the Mets, now over .500 for the first time since 2001. As with that year, they teased with playoff hopes after a late season swoon, but they still have a pretty good year. And, nice (late) September -- too bad they first went in that swoon, huh?

Televising Orals

Book: For A Christian America: A History of The Religious Right by Ruth Murray Brown, a mostly sympathetic account, was interesting but imperfect. Brown supplied their point of view, but it cried for a bit more critical commentary now and again. How can Phyllis Schlafy, who ran for Congress when her children was small and is a strong public voice, be so well liked by anti-ERA sorts who support stay at home moms? How is their hysteria against lesbians not "extremist" or to be taken seriously? Or, their claimed superiority (compare Transforming the Faiths of Our Fathers, edited by Ann Braude, providing feminist religious voices whose lives overlapped with many of these people) on what is "God's plan" not be elitist? The book provides a useful "mind of the enemy" point of view, but it needed a bit more critical analysis.

Thanks to sources within the court system Indiana Barrister was alerted to Senate bill 1786, authored by Sen. Arlen Specter, Chairman of the Senate Judiciary Committee, which would allow televising United States Supreme Court proceedings. The full text of the bill has not yet been posted online but Sen. Specter's office has sent a copy to Indiana Barrister.

Since the 1950s, the Supreme Court has taped its oral arguments. Oyez.com provides audio of some of them. Peter Irons, a liberal professor/researcher and author of various books on legal subjects, got in trouble -- though the Supreme Court backed down from threats of further action given the negative reaction -- when he put a collection of some edited orals (with commentary) for sale in his "May It Please The Court" series. And, recently, the Supreme Court in a few cases (Bush v. Gore, affirmative action, campaign finance, and enemy detainees) released the audio immediately to C-SPAN. In those cases, pictures of the people talking/asking questions were supplied. The Supreme Court on its own website has the transcripts of the oral arguments, recently labeling the justices asking the questions (in the past, the questioners were not so labeled).

The audio and transcripts provide a good resource to the public. Oral arguments along with opinions are the only "public" aspect of the Supreme Court, the general public (though tourists are generally allotted only three minutes or so) allowed to view the orals along with the press, lawyers, and participants. Sometimes, often in fact, orals can be pretty boring. Nonetheless, sometimes -- as Dahlia Lithwick suggests -- they can be quite revealing and important. They also, and this scares some of them, demystifies the Court to some degree -- but this is also a good thing. We have "public" trials in this country in part to serve as a check to total judicial mystery. It is long time that the orals are televised, surely at least for the audio to be supplied.

The concern in part is that people will play to the camera. Since the press is present as well as other important characters, the supposed harm is only likely to be just so much -- these days, appellate arguments often are dominated by a small class of litigators, and their audience is largely there already. Some, especially those who represent certain advocacy groups, might be tempted. But, this is the Supreme Court, not special order sessions on the floor of Congress. How much additional mugging -- as if Scalia et. al. do not do that already -- will be possible? A trial court with a jury might raise special problems, but oral arguments in front of the Supreme Court is a lot less likely to be problematic. One balances this with the public value of such openness, which C-SPAN in general suggests is quite important.

Some justices fear the news media will take selective clips and spin them in a misleading way. But, the media can do this now -- the press is allowed in, and they can highlight certain parts of the oral arguments. Why should television media be discriminated in this fashion? Are they considered more likely to do so? If so, is this not First Amendment discrimination anyway? And, some justices like their privacy. But, as Sen. Specter notes, justices might actually have too much privacy to the degree that they are so powerful and so little regarded by the public at large. A public that generally does not even know half their names.

Televising/broadcasting the oral arguments will not lead to grand changes or improvements. But, it will likely be a beneficial step, one that is long past overdue. Hopefully, CJ Roberts will be sympathetic and help convince his brethren to be supportive. And, quite arguably, Congress does not need their permission to pass the below legislation.

Monday Thoughts

RIP: After "Gilligan" died, it is now "Maxwell Smart's" time, Don Adams dying in his early eighties. Don Adams was best known for his role in the spy spoof Get Smart, which amused me many a times when I was younger, reruns playing in syndication. He was in two updates, including a so-so movie and a lame t.v. update. He also (amusingly) was the voice of the in effect cartoon version (Inspector Gadget) and various other cartoon characters, including Tennessee Tuxedo. His death is another sad passing of nostalgia figures of the past, though in a sense they have passed a long time ago -- they shined mostly in television series of the old, while we still have a chance to see them in reruns.

Football: Yesterday was a tiring sports day, though it was a nice day for New York baseball ... NY football, not so much. The NY Giants had no defense, and Chad Pennington (and his back-up) got hurt. Actually, it truly annoyed me -- only as sports fans can it annoyed -- that Chad was left in so long. He was taken out late in the game because of an injury, but his back-up got hurt at the end of his only series. And, though Chad had enough left in the tank to bring the team back for a tie at the end of regulation, it was only a tie (after first and goal) in part because he was still hurting.

This was truly obvious in OT as shown by an interception thrown near midfield. But, he was left in for the last series ... with them pinned back near the End Zone, and the end result was unsurprising. The third stringer is no wiz, but he is healthy (and due to start on Sunday ... Chad is likely out for the year) and decent. He had to be put in ... the Jets deserved a better chance to win. Meanwhile, what do you know, the Pats won late with a field goal. Oh go away.

Roberts Again: I know -- the idea, is punt, and worry about the next slot. And, he is no worse, maybe somewhat better than Rehnquist. I won't restate my argument, in part because the other one is not totally wrong by any means. But, I do think the time to be "reasonable" has passed. Remember (Judge) Bybee, the person who helped sell the administration's torture policy?

Now, I read that (former judge -- why did he resign a federal judgeship? moron) Chertoff helped to silence John Walker Lindh (remember him? twenty years for his foreign adventure before 9/11 made it halfway a threat to our interests at all) while cutting off any investigation in the torture situation.

Roberts: It's A War, Not A Singular Battle

As witnesses go, Judge Roberts was one of the most impressive. As I suspected when I prepared my statement, the Senate Judiciary Committee needed a way to get information, for Roberts himself was volunteering nothing.*

-- John Dean

Leahy said he still has some concerns about Roberts. "But in my judgment, in my experience, but especially in my conscience I find it is better to vote yes than no," he said. "Judge Roberts is a man of integrity. I can only take him at his word that he does not have an ideological agenda."

The Senate Judiciary voted John Roberts' out of committee by a 13-5 vote, which means that if everyone voted, the vote among the Democrats was 5-3 against. This translates to a 73-27 sort of vote for the full Senate, which sounds about right. Sen. Leahy was among those who voted for the nominee, since he "trusts" him. I assume Pat expects us to take that seriously. I know I do not.

Judge Roberts can be a man full of integrity, at least depending on how you define the term, and still prove to be a conservative stalwart. As suggested, Sen. Feingold (who voted for Ashcroft) supported him as well since the hearings suggested that he "will not bring an ideological agenda to the Supreme Court." While in private practice, Roberts dealt with less fatuous individuals at his children's "take your parents to work day" ... his children are I believe in elementary school. Meanwhile, centrist sort Sen. Feingold (CA) voted against him along with the usual suspects. But, not Leahy, ranking member ... yeah ok.

These people need to read a bit of history. Consider the Civil War. Early on, Eastern generals took the "big set piece battle approach," each time fighting the rebs, eventually led by Lee, and then running behind the nearest river. This stalemate lasted about until Lee stupidly fought that third day at Gettysburg. Grant stepped in and saw that it was a battle of attrition. He wore the rebs down, getting bloody himself, but he licked them in the end. The Dems might have less troops, but they like Grant really have the majority of the country on their side.

And, not realizing defeating the enemy forces (and that is what we are dealing with, not "men of integrity" or whatever) is a long term goal is moronic. Yes, Roberts is going to be confirmed, so the "real" battle is to fill the O'Connor seat (Sen. Specter sensibly suggested that Bush ask her to stay on the term ... not surprisingly, Bush wasn't too keen).

But, it is not a singular battle with no connection to the past. The Roberts battle underlines where the Democrats stand and their willingness to be firm (or not, as it turns out). A quick "no" vote would show that they can simply allow an "up and down vote" when the situation is not drastic, even if they oppose the nominee. And, when it is especially important, they would still have the possibility to say "see, we let him in ... but this time it's more important and different ... we have to filibuster." A difference, you see.

Compare this to the business about the appellate nominations that were filibustered. They did not just filibuster one particularly troubling sort -- they had enough for it to be a significant battle, while generally allowing an up and down vote. Now, it would have made more sense if more senators voted "no" some of those times. And, another thing. When the other side pointed out that the Dems were annoyed at things the nominees did that turned out to be accepted by the Supreme Court (like supporting the ability of states to block the federal government from forcing them to protect disabled employees), they can say "yeah, and the Supreme Court was wrong. The best we can do is not to support someone particularly gung ho about such things BEFORE the SC made it the law of the land." But, they did see it as a long drawn out campaign.

So is the Supreme Court. It is not out of the realm of possibility that a Republican controlled Senate will have two to three more nominees to handle before el presidente is out of the White House, especially if the Dems do not shape up before midterms. This must be seen as a united campaign -- not just separate battles in which only one is handled particularly harshly. You know, where a consistently liberal ranking member of the committee votes against the stance of his PRO-LIFE minority leader. One who is worried about the nominee, but still votes for him!

We are just to take the CHIEF JUSTICE OF THE UNITED STATES on faith. The path to a faith-based government is now complete. The electorate took the president on faith, and now the head of a second branch of government is as well. After all, "Senator Herb Kohl of Wisconsin, said he had been persuaded because of the nominee's 'sterling reputation as a lawyer and a judge' and was therefore voting with 'my hopes, not my fears.' "


It's official -- the "extraordinary circumstances" rule now applies to Supreme Court justices. Or, rather the "I hope, I hope, with sugar on top" standard. How freakening depressing. Again, yes Virginia, you can oppose Roberts ... like the minority leader ... and still filibuster the next one. A firm opposition is a big part of how your party lost power in the '90s. If the Civil War is too far back, how about more recent history?

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* The "judges are umpires" remark was rightly ridiculed by many quarters. Umpires generally do not get to decide the rules of the game, though when it comes to balls and strikes, they in practice have loads of flexibility. This remark alone, deemed by some as impressive, is but a taste of why "impressive" is not the best word to apply to his remarks, but "crafty."

Sunday Thoughts

Good football day, except for Green Bay, etc. Moronic moment: Arizona down by 17-12, not having a shot to score from the Rams 5 because of a false start penalty before the QB had time to spike the ball with under 10 seconds left (game ends by rule). #2: The Jets tv announcers, so concerned with a possible f-up at the beginning of the game, they missed a pretty obvious (heck I caught it) offside penalty that negated the play. Actually, the Jets lead a charmed life -- the almost gimmee Dolphins kicker missed a 21yd figgie, and the team went downhill from there.

Hemp: Yesterday I saw a good documentary in support of industrial hemp. "Hemp" is a perfectly innocent item, whose history as rope product and so forth is suggested by many place names (Hempstead, New York). It also can be used for cloth, paper, food, and build material. Hemp plant is useful for plant rotation policies (growing the same plant in the same soil year after year bleeds it of nutrients). Other nations, including Canada, grow it; I myself have had hemp flavored frozen waffles. And, when alternatives were at risk during WWII, there was even "Hemp For Victory" government films.

So, why is its cultivation illegal in this country? Drug hysteria. Hemp is in the same family as marijuana (both genus cannabis), and while being grown, parts of the plant have trace amounts of THC -- the chemical that makes one high. Actually smoking hemp is liable to get you sick, since it is primarily quite different, but hey there is some connection. The two plants actually also look different (hemp much taller). We have people like a former top official at the CIA praising the item's usefulness, and anti-drug sorts suggest the only reason people are for it is because they are druggies. You know, like Washington and Jefferson, both whom spoke highly of the substance.

The hysteria was so high that the DEA was worried about hemp birdseed from Canada and had to be sued to stop threatening the sale (mind you, the THC no longer is there in the products any more cocaine is in Coca Cola) of hemp products. Since marijuana criminalization is basically inane, you can imagine how one should judge this policy. It is unclear how useful hemp truly is, but it does have wonderful potential with a flexibility akin to petrochemicals in certain respects. And, the government wants to ban the stuff because it has some slight connection to marijuana. Sounds about right.

IRV: For the second time in two election cycles, there was almost a run-off between Democratic mayor hopefuls, this time when it was clearly know the second place winner had no desire to run. The reason was, and this was the case both times (but last time it was Al Sharpton), he knew he had no shot of winning. There just were four candidates (and two oddballs, who might have resulted in a 12mil dollar waste of time given technical legal requirements), which meant that getting forty percent of the vote (the threshold) was somewhat hard to do.

Luckily, two were really losers, and a third was named (seriously) Weiner --- actually, the third seemed a decent sort, but had no shot to win the big prize, basically a newcomer. How about some Instant Runoff Voting? After all, we are due for some electronic voting machines in a couple years, right?

And also: Krugman (from website -- a way to avoid NYT subscription rules -- what are they, the Wall Street Journal?) "Consider this: in the United States, unlike any other advanced country, many people fail to receive basic health care because they can't afford it. Lack of health insurance kills many more Americans each year than Katrina and 9/11 combined."

A few productive minutes of Roberts Hearings

I caught a few minutes of the replay of Sen. Feingold questioning Judge Roberts, and you know, it was pretty interesting. And, not useless. (1) Feingold had some good evidence that some the writings the Dems were using actually was Roberts' own opinions (personal cover notes, personal testimony to Congress when he was in private practice).

(2) Roberts said a telling thing -- he seemed (though I don't think there was a follow-up on the point) to suggest that the core reason for habeas corpus appeals was to determine innocence (Roberts cited an article by his former boss suggesting the appellate process was amuck, and the actual innocence of the defendant was basically ignored in honor of playing the "let's have another appeal game").

But, there are many reasons for habeas, which determines the authority to hold the prisoner. The prisoner need not necessarily be innocent to be wrongly held. If a person had incompetent representation, are we not to worry about it, if (in the appellate judge's view) the defendant was "innocent?" No. One can't put too much into a passing comment, but it got my attention.

(3) We have another person who didn't like the old more liberal days, but tells us not to worry -- the law changed. In fact, the law changed to a conservative direction, which means they are actually "mainstream" now! This really isn't too appealing -- in various ways, the law should actually should lean the other way again, and a strong believer of the status quo is not an ideal choice. And, you kinda know his leanings when he could not even admit that innocents were saved by the appeals process -- upon questioning, he said the claim was able to be heard.

(4) Decision assignments are done at least to a degree strategically. Legal experts and court watchers have noted the fact. The idea he will suddenly not use the power to assign in this fashion is not really to be taken seriously. I think more should be said actually about Roberts' CJ potential. Seriously, we really don't know what sort of leadership he will bring.

And, no, I'm not with those who think the position is not really relevant. Not to be exaggerated, yes, but do not tell me Rehnquist did not use his role to steer the Court in a certain direction, just as Burger tried to do, and Warren did as well. I simply don't know, and this is different from his role as a justice alone, what sort of CJ he will be. Rehnquist followed the tone of his associate justice in many ways. Warren was governor of California. How do we judge Roberts?

(5) Roberts is on record saying a new federal intermediate appeals court to handle errors below was a moronic idea and the true problem was that there was too many appeals in the first place. This alone would cause one person I know to oppose the guy on principle. Not that she needs much pushing.

But, since Feingold supports the like of Ashcroft, will he just vote for Roberts anyway for the sake of comity? Also seen: Clark/Feingold for 2008 tickets. Well, Russ does sound like my sort of guy, except when he's not, you know.

Today's Moron

Family Guy has not been good lately. Today's episode went downhill after a pretty good first half, along with a Gilmore Girls joke (though its off-color theme reflects the show's recent sadly predictable habit of going for the "edgy" joke that often isn't that funny ... still, appreciated it).

Stupid and/or ill informed comments make me angry.* I have read more than my fair share in the last few years given my addiction to online opinion sources, but stupid comments -- especially from alleged experts -- still piss me off now and again. This is true even when I read the same old thing over and over again. I guess it's just a pet peeve. Such was the case by a NYT editorial by Robert George, "a professor of jurisprudence" attacking the privacy jurisprudence of the Supreme Court. The column was simply put, full of shit. Such was my immediate reaction.

Who is this "professor of jurisprudence?" I did a Google search, and an early hit was an interview with National Review with such comments as: "Even if we were to credit Michael Schiavo's account of his conversation with Terri before her injury Â? which I am not inclined to do" etc. (i.e., we cannot trust a spouse to make such decisions, conservative moralists should). Ironically, he also received a "Justice Tom C. Clark Award." Justice Clark wrote a law article after leaving the bench that applied Griswold, which he supported, to the abortion situation. In other words, George got an award in the name of someone who supported the ideals harshly dealt with in the editorial. Oh, yeah, he also got an award from the conservative/libertarian Federalist Society.

Many libertarians sympathetic to or even members of the Federalist Society are strong supporters of a "right to privacy," though they might phrased it differently. Therefore, it is not only "especially" honored by "liberal circles." Such libertarians (see, e.g., the Cato Supreme Court Review series) will point out to various constitutional basises for the right. They will explain the historical basis of such a view. And, surely, they would remind the fair professor of the Ninth and Tenth Amendments that secure to the people rights and powers not expressly enumerated in the Constitution. But, such provisions are only useful to make specious state immunity arguments, I guess. After all, limited government is not productive for those supportive of morality from above and strong executive power.

The column is honest enough to directly target Griswold v. Connecticut, which struck down a law banning use of contraceptives for marry couples (more specificallyy, sale to them). Prof. George "elicit[s] derision" from its ill-advised turn of phrase that "penumbras, formed by emanations" of various amendments protect marital privacy. He fails to note that Justice Holmes used the term "penumbras" in a similar sense, as a means to note that constitutional provisions bring with them a sort of shadow, additional powers or securities that are necessary to give them life. The overall principle is pretty uncontroversial, especially by those who are strong advocates of executive power. The addition of "emanations" may sound particularly law professorish, but Prof. George of all people shouldn't mind.

He notes the opinion was 7-2, not mentioning two of those votes (Clark and Harlan) were judicial conservatives, three if one wants to add Justice White (conservative in various ways, dissenter in Roe). He also ignores how Justice Harlan in particular referenced an early opinion in which the law was opposed as a violation of due process principles that developed since the late 19th century. And, no, not just in the infamous Lochner opinion of which Prof. George's spirtual ancestors probably concurred. One such strand protected sending children to private/religious education as compared to mandated (progressive) public school education. The cases also reminded us that "liberty" included broad power over marital life and how one raised one's family. It is not really silly to assume this applied to controlling family size.

But, apparently, the problem was that such cases overall did not really directly touch upon "sexual conduct." Do they have "anything" to do with that subject? Um yes. For instance, various cases protected sexually themed speech. Some cases specifically spoke of the privacy of the home, a privacy in place so that people can enjoy private familial activities, such as you know a sex life. Past restrictive laws often targeted associations that dealt with sexual topics. And, the right against self-incrimination is particularly valuable in sensitive areas, such as (you know what). One might even add the common law principle that a wife cannot testify against one's husband.

Prof. George takes a swipe at substantive due process, ignoring the history of the term, which includes protection of certain liberties that are so fundamental that they can never be justly the "law of the land." He challenges Roe's "sweeping" protection of this provision to abortion, ignoring its citations that spell out why precedent protected it in comparative situations. [Again, for those who did not actually read these opinions or are ignorant of history, it's a lot easier to nod in agreement with moronic commentary.] And, adds some declarative statements that assume no rational reason can be supplied to separate abortion from the likes of prostitution and polygamy.

He ends with the same old bullshit that the opposition does not simply have a different judicial ideology or interprets the Constitution in a different way. No, it "is simply the moral and political opinions of the justices" that compels the results. This libel is as wrong as it is tiredly predictable. I don't agree, so the other side must be guided by irrational or extralegal motivations.

This is the mentality of a five year old. So, I guess I shouldn't be too angry at them ... they don't know any better.

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* This also applies to actions generally. I was truly pissed when an apparently (I did not see it ... but the announcers repeatedly made the point, and they are generally fair) miscalled out was made in a key situation in the beginning of yesterday's Braves/Mets game. The hit would have brought the team back to 3-2 and easily could have been a momentum changer. Instead, Andruw Jones -- who Mets fans love to hate, but is the MVP of the Braves team this year -- of all people (he's an excellent fielder -- he doesn't need help) got the benefit of the call. Catch, not trap.

The hit (or sorry, out) was by Mike Piazza, fan favorite, who was pissed. I'll tell you what I wanted: I wanted the Mets' manager to debate that call so much that an ejection was at least possible. The team deserved it, and given the rivalry and recent losing ways, it needed it. But, no, not Willie. The team went on to lose 7-5, though it won today, a rare series win vs. the Braves (though the Mets do manage not to suck when they play them in NY).

"I am not the man who can provide that leadership"

NYT had this to say about the movie that I saw today that put a smile on my face and was seventy or so minutes of pleasure: "A necrophiliac entertainment for the whole family to enjoy, Tim Burton's Corpse Bride marks the director's latest venture into the world of stop-motion animation." That's about right. "No, Jimmy, death isn't like that! Put away the poison!" Meanwhile, the new Reese Witherspoon (she's looking good) movie I'm due to see next week is being compared to the Terry Schiavo Case. Uh oh. Sexy decomposing women, yes ... anti-rationalism propaganda, no. Well, I shall see.*

And, now for something depressing. BTC News had a "the speech that we only wish he'd give" that was one of her elite efforts; a sample:

It's also clear, to me, to my family and to the country, that I am not the man who can provide that leadership. I led you into this disaster, but I cannot lead you out. ...

I am prepared to stand accountable, and it is your duty, your solemn and necessary duty, to see that I am held to account.

Yeah, and then we wake up. As Joshua Micah Marshall notes, besides the (no really) moment (no, I'm serious) he reminds us that Karl Rove ("well, we can't go after him now ... you know ... so trivial really ...") is heading the plans to revitalize New Orleans (megaeffort, but no new taxes! cut the benefits of you know people in New York ... been four years ... Ground Zero is still a hole in the ground, but hey ...). You know, heading up talks on how it could be done following the Bush philosophy. (Ok, stop vomiting! ewww.)

Where was I? Oh yes:

Then there's the president's great line from the speech: "It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forces."

No, it's not. Actually, every actual fact that's surfaced in the last two weeks points to just the opposite conclusion. There was no lack of federal authority to handle the situation. There was faulty organization, poor coordination and incompetence.

Sen. Graham (R-Impeachment Manager) set aside a moment from some of his folky comments in support of soon to be Chief Justice Roberts to comment on how is ready to support a new bill giving more power to the President to deal with such matters. You know, better able to deal with disasters. Graham btw also was on record against the abuse of the detainees, but is fully supportive of Roberts, who recently handed the executive mostly a blank check when dealing with such people.

[The courts, not totally to blame really, are stretching the vague authorization of force resolution in 9/01 to mean that the President has power to establish military commissions and so forth. Congress had plenty of time to pass clear regulations to clarify what powers he really has, but since they punt, various federal courts rationally (if not rightly) suggest they did so implicitly. Again, while we rail against the likes of Roberts and the 4th Cir., Congress is to blame as well. Or, is the "blame game" inappropriate?]

I do like Graham, hate to say, I do. He doesn't seem like asshole or anything, and has a down home way (yeah, I know, politician and all) that is pleasant. Likewise, he seems to not be totally in supportive of the dark side. But, at the end of the day, this really just makes him more dangerous. Seriously it basically does, since at the end of that day, he carries the administration's water. An administration that doesn't deserve to be in power.

Let's just be blunt about it. Personally, and this is just a gut reaction, I cannot stand seeing or hearing the President -- I keep on seeing his damn face (AOL News) when I log on. And, these damn speeches -- now and again he makes a "good speech" (wow! he can read a speech! very good figurehead! pat on head), and we are supposed to be so excited. "You know, that was a good speech, got to admit!" (1) They generally aren't (they generally are b.s. and if people gave a second of real thought, they'd know it) and (2) Who cares? People expect more from baseball and football players. When they say good things, you know, bfd. What did they do?

But, the people -- including voters in 2004 (I blame you too, you know ... I believe in republican government. You voted for him!) -- apparently don't expect much at all. Enough with these fucking "low poll ratings" certain libs laugh at. Yeah, ha ha! Bush is just crying his eyes at while he's in the Oval Office ... "they don't like me, Karl!" "Yeah, they liked you last November though!" (laughter) The people don't like bad weather too, but apparently are willing to live with it.

Simply put, and you know eventually one might get the idea that this will sink in, the administration is incompetent. It's bad enough that they are corrupt, cynical bastards. That eats at you. The incompetence just makes you want to scream. Bushies sorts are bad enough generally ... one would hope that you actually get something. But, as one person noted (an online sort that knows this administration is bad for the country, but is a loyal partisan, so votes for them anyway ... asshole!), he stands up to the libs and other likely suspects. Is this all one needs? Are people THAT desperate? Expecting so little from their government?

If so, and seriously this really has to be underlined, they are as much or more to blame than the leaders. Again, I'm not holier than thou. I'm not at the barricadess like some others ... I'm just here putting forth a jeremiad. But, people in a republic have a "solemn and necessary duty" to hold their leaders to account. Leadership does not mean cutting the pay of the workers to be involved in the rebuilding effort.

It doesn't mean giving Rove MORE power. It doesn't mean AGAIN rejecting an independent commission over the "bipartisan" congressional one the House Dems basically all opposed, though the "MSM" failed to underline the fact. One which currently Dems would not have subpoena power.

How can one let this administration stay in until 2009? Think of that THREE MORE YEARS. The quislings didn't sign the blank check as of three years ago. We deserve better leadership, but if the people as a whole (and a significant minority forcibly doing a lot more) does not demand it -- basically saying, you failed us too many times! -- we will not get it. So, we will be left with going on with our lives, trying our best to be good members of our families and communities.

Not good citizens though. Citizens care a bit more about the polis than this. They expect a wee bit more.

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* The other true moment of pleasure was reading the pure snarkiness of the local sports coverage of last night's Mets loss; some line was crossed when you read this sort of thing:

It is starting to get really ugly at Shea. The "crowds" are jeering. The Mets are free-falling. And the ways in which they are losing are mind-blowing.

Cliff Floyd hit a go-ahead grand slam in the fifth inning yesterday, but that wasn't the decisive moment. Oh no. There were still four innings to play - plus one extra, as it turned out.

Today was a gem, especially the finale, but that's the writing of a pure Mets fan. Betcha he loved the game earlier tonight ... true fans earn games like the one today.

Why Should Dems Vote For Roberts?

Baseball: The Mets got swept today by blowing a ninth inning lead vs the Nationals, who have comparable talent, but did not suddenly fall apart once their post season chances became unlikely. The Mets was one Pedro win from being tied for the Wild Card lead at the end of August. Then, they went on a freakening freefall (again), making moronic choices such as pitching to an elite player (winning run) instead of the light hitting person up next. Morons.

In the end, then, I believe it's time for Democrats to start saving their ammunition for the next nominee: the one who will replace the swing-voting O'Connor, rather than the conservative Rehnquist.

We have long known that Roberts had the talent and experience to be a Chief Justice. And although the hearings have been stunningly uninformative overall, Roberts's testimony suggests that he is the wrong candidate to oppose on purely ideological grounds. Indeed, based on his testimony, Roberts may prove to be both more thoughtful and at least slightly more liberal than the former boss (Roberts served as Rehnquist's law clerk) whom he is replacing.

Democrats should vote yes, and hope for a pleasant surprise over what is likely to be Roberts's long tenure as the Court's first among equals.

-- Edward Lazarus

It is somewhat unclear, as Mark Tushnet suggests, how just voting against Judge Roberts spends so much ammo that not enough will be around the next time around. In actuality, it suggests why we need a more mature way of doing things here. As Lazarus suggests, Democrats have a hard time with developing a good public relations strategy to oppose the current conservative (or rather, incompetently fascist) state we have to bear these days. Thus, Dems try to sell that particular nominees are "outside of the mainstream," which in some sense means they are scary sorts that would be a true threat to the commonwealth. This is a hard sell with nice guy sorts like Judge Roberts, and clearly only can be done in a sparingly matter.

But, there are other ways to go here. The Democrats can vote (and given the low ebb of the Bush Administration, not lose much in the process) "no," and say that they just basically ideologically oppose the guy. The public really thinks this when they oppose others in the past anyway, true or not. And, as noted in the past, a good case can be made that Roberts is ideologically quite conservative. You know, if you actually base your judgment on his actions. One will make reference to the past, including near unanimous votes in support of the likes of Justice Ginsburg (who Sen. Hatch recommended). Let them. Things are different now. The fact that the Dems are stuck by those who compare now with 1994 as if the situation is the same is a sign of how freakening weak they truly are.

Anyway, why should we vote for Roberts? The fact he is quite competent is notable, sadly so, given recent events. The hearings are said to be "stunningly uninformative,"* but apparently informative enough to tell us his ideology is not too bad. Hmm. Nor, is the fact that he will be "at least slightly" more liberal than Rehnquist a particular big sell. So, we are left with the "hope for the best" principle. You know, the same one used by those morons in my party who supported the war, even though they knew the commander-in-chief was an incompetent dweeb.

[Note: Why is anyone surprised with his handling of New Orleans? What led us to think he would handle things well? Hope? Do we also believe in fairies? Or is the astonishment and disgust from the likes of Charles Krauthammer and David Brooks just a show? Don't worry: el presidente is on t.v. now saying he will lead the rebuilding. I feel so much better now. Thanks Bush voters!]

I will be honest. On some level, I do think Judge Roberts is not a bad pick. You figure a replacement of Chief Justice Rehnquist would be conservative and he does seem like a very competent and personable sort. But, on principle, why should we support this guy? He stands for an ideology that the Democratic Party should be strongly against; the fact he might not be as bad as some stereotypical demon doesn't change this. Honestly, Rehnquist wasn't THAT bad in various ways either.

And, an up and down vote would still lead to his appointment. Do you think a 87-13 vote will compel Bush to replace O'Connor with a better sort? In what universe? Besides, I DON'T TRUST BUSH. When will they learn that a middle path will not get them very far. A strong, principled, opposition very well might. The fact that this can be done along with a strong effort to have O'Connor's replacement not be a dangerous one is akin to walking and chewing gum at the same time. If it cannot be done when the SUPREME COURT is at stake, when can it be? Are Dems to use all that ammo once? When are they saving it for? The nomination of a random appellate judge?

And, let Republicans vote against a strongly liberal sort if the next Democratic President is the incompetent ideologue s.o.b. that President Bush is. [Again, same situation, the guy/gal would be appointed anyway.] But, let's hope that is not the case, and that the Dems control the Senate again by then anyway.

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* Various accounts suggest the hearings actually have been somewhat useful in getting a hold of what his views truly are. Therefore, reading between the lines, one finds that they do serve a purpose. More can be accomplished, but the assumption that they are useless is hyperbole.

Bush Administration Honors International Law

Lol.

It has been a maxim of statutory construction since [1804] that an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains. While RFRA plainly applies to Federal law, the statute at no point clearly evidences an intention to abrogate or modify treaty obligations. Because treaty rights and obligations are too fundamental to be easily cast aside courts should be most cautious before interpreting RFRA in such manner as to violate international agreements. [cites removed]

So said Solicitor General Paul D. Clement is a brief against a claim brought by a religious group to import a certain drug to use as part of their religious ceremonies. RFRA (Religious Freedom Restoration Act) as applied to the states was declared unconstitutional by the Supreme Court, Justices O'Connor, Souter, and Breyer dissenting. A pretty narrow application respecting the federal government will be decided this term, perhaps on narrow statutory grounds.

So, apparently, the "law of nations" (international law) should be given special respect when the U.S. Congress acts, the President carries forth laws that they enact, and when the Supreme Court interprets them. "Any other possible construction" is pretty broad, not "reasonable" or even "probably accurate." Of course, if the Constitution compelled otherwise, it would not be "possible."

Anyway, it is nice that the administration is so very concerned with international law and treaty obligations.

John Roberts

Gilmore Girls: The season premiere of GG was on last night, setting the tone for the upcoming mom v. daughter story arc aka more downer material. The episode itself was decent, but since Rory's b/f is still annoying, Kirk has become a caricature of himself, the Lorelai/Luke relationship lost steam once they got together (the Maddy-David syndrome), and the general downer nature of the plot, it was still pretty blah. I did like the judge throwing the book (so to speak) at Rory because she didn't not rich girls breaking the law on so-called "larks." More power to ya.

Though I do not think the hearings are useless, I must admit to not having much desire to actually listen to them. I caught a few minutes, and you get the idea that nothing much is going on pretty fast. Maybe, if one has lower expectations. Still, what if the Dems got together and submitted a truly well staged attack building off each others' questions? They just might score more points.

In response to an essay that suggested Judge Roberts' nomination as chief justice as such is not very important, I sent this email:

As to your Findlaw piece, it might be argued that the ability to distribute opinions (as the most senior justice) is of some importance.

For instance, let's say Justice Brennan was in a sense the true power behind the throne. If Chief Justice Warren was not so friendly with him, however, Brennan might not have been as powerful. Warren could have gave key opinions to other justices, or if he had the wherewithal, kept them for himself.

Also, CJ Rehnquist's personality helped him to put his own spin on the Court, including cutting back opinions, in a way that CJ Burger arguably was less able to do.

As Linda Greenhouse noted in a recent piece, justices aren't fungible; in some sense, neither is the role of Chief Justice and associate justice. One should not exaggerate, but underestimating is also possible.

Meanwhile ... I found blog commentary, including in comments, quite helpful in getting a read on the Katrina response. Also, this essay explains the "legal necessity" defense for "looting" quite nicely.

Finally, though Newdow lost, (not surprisingly) a custodial parent did win a Newdow claim on the district court level out in the Ninth Circuit. Will the Ninth uphold the riginal appellate ruling striking down the use of "under God" in the Pledge? The odds say, no.

Oil For Food "Scandal"

And Also: Good start for football unless you are the Jets, Bears, Packers, and so forth. The 1-0 win yesterday thanks to Randy Johnson et. al. is what has been missing from the Yanks season a bit too much; the Red Sox yet again brings it out. Too bad that the Tampa Bay Devil Rays (11-4 vs. Yanks) might have doomed them, especially with Cleveland on fire (swept Twins, up 1.5 games in the Wild Card Race). And, why is tennis over after David Letterman? I don't watch it, but that's a bit dumb, isn't it?

Joshua Holland discussed the so-called Oil For Food Scandal. Read the whole thing, but to summarize:

The program basically worked, saving many lives in the process

There was some leakage/corruption, but it was widely exaggerated

In real terms, the specific problem targeted by the usual suspects -- given everything -- is trivial

If one wants to blame, our own country's corporations and government probably deserves the most

This suggests the nature of the UN: an imperfect institution, reliant on key countries, but able to do real good

The stereotyping and spin from the freshman senator of Minnesota (sigh) down, is a cynical method of avoiding such things.

Anyway, the true focus should be on the incompetence of those who lead us. It is bad enough that they are getting to select at least two justices ... given the current track record, I wouldn't want them to pick a local dogcatcher though perhaps a certain FEMA head is qualified for the position. At the end of the day, this is nauseating. Like a drunk who has to hit bottom to get help, will this work? We shall see. The new book link (Dangerous Doses) suggests the breadth of the problem, but change at top has to be a beginning.

Update: The FEMA head, designated scapegoat, quit. If only the people who put him there did as well. But, you have to have a little bit of respect. Others purely incompetent did not quit.

Padilla: Gov't Found Someone To Vote Their Way

Further reading: here and here. The second is especially useful to underline how overbroad the 4th Circuit truly is.

Jose Padilla won in the lower courts the first time around, but the Supreme Court held that he sued the wrong person. As discussed by Justice Stevens, this was blatant formalism, technicalty (as is often the case) used to deprive liberty in a particularly egregious situation. Even worse, Justice Scalia -- who demanded that an American citizen seized on the battlefield required a court hearing and civil process -- joined, even though his Hamdi opinion clearly would have applied with added force to Padilla. This means five justices on the merits was on his side, all of them still on the Court btw.

On the second go around, Padilla won on the district court level in a well reasoned opinion that properly respected liberty as well as not reading the 9/01 authorization of force as if it was a "blank check" that applied to people picked up on our soil thousands of miles from a battlefield. The appellate court overruled without dissent in a forthright opinion that basically was written as if everything was crystal clear. But, this is why the administration forum shopped and chose to put him in the baliwick of the Fourth Circuit.

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

But, Hamdi noted this is not a "blank check," and specifically limited itself to the battlefield captures. Some blame goes to Congress ... it clearly could have dealt with this situation and made it clear this did not apply to Padilla, but they did not. So, we are left with the courts to protect constitutional rights. Of course, the courts generally (until now) pointed the government in the right direction, though the Supreme Court did not close the deal. They punted, but since the majority knew where this case was going, one wonders if this is not what was intended all along.

Marty Lederman, who kinda used to do this sort of thing for a living (member of the OLC), discusses the ruling here. As emphasized by the comments in his first piece, besides the guy who sounds like he is a member of the administration trying to get Gonzalez's old job, the opinion was in no way compelled by precedent. It was complicated by Padilla apparently stipulating that he was an "enemy combatant" for the purposes of the case. The district court ruling only had "facts" respecting his capture, which are not incriminating in the least.

But, though this does narrow the ruling, it doesn't justify it. As Lederman notes, it doesn't justify his capture to begin with, and if made, the admissions were made under duress. Thus, you need a hearing. Second, the government is accusing him of treason. This is a civil crime, spelled out in Art. III, and warrants criminal process. Third, if he is an "enemy combatant," the President on his say-so should not have the right to so determine. The stipulation here does not change matters, no matter why it was set forth. Finally, Padilla was held as a material witness, criminal, and whatever ... so let's cut the crap.

The opinion noted that the administration (using the current rationale) could hold Padilla to prevent him from going back to Afghanistan. And, since he is an enemy combatant (the hearing regarding this might be forthcoming, according to the NYT* ... no rush), he could be held for this reason. And, the non-blank blank check gave the authority. Sure. No it didn't, and there was other ways to hold him ... some likely challengeable on other grounds, but a lot better than this. And, if they didn't work? Well, at least try them first! The district court says this using better wording, since he has law clerks and all.

Oh, and liberty brings a bit of risk. Just ask Iraqi citizens. Ha.

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* It quotes a lawyer for other detainees saying the opinion on these facts are "fair." He's wrong, but his halfway respect for liberty has been shown in the past.

Some Wednesday Thoughts

And Also: Rep. Holt (scientist) explains why President Bush's support of teaching Intelligent Design in science class is so distressing.

Katrina: On the way home from the movies last night, I picked up a local free weekly, and it had a wonderful article on the Katrina response. It started with local officials, providing a historical view of why New Orleans was unable to properly response. Next, it refused to blame the war, though missed the point in the process (it's not a question of never sacrificing to fight a war -- it is that this war is not worth it). But, then it spelled out in detail why the federal response was morally criminal. A well rounded account, and ever more useful for its measured outrage.*

Movie: The movie was The Constant Gardener, concerning a stolid British civil servant (having some role in international development) investigating the suspicious death of his young reformist wife on some road in Africa. It is well done, the human stories of the two stars as strongly portrayed as the underlining poverty in Africa and the corruption that arises from it in the pursuit of money ... with more than a tinge of racism thrown in.

It all has something to do with her investigation of drug trials and though one is sure to be reminded it is fictional, it surely brings to light reality (more complicated, but just as troubling) and to mind real life politicians. Note, for instance, trials of the first successful birth control pill was run in Puerto Rico -- we generally outsource our clinical trials as well, opening up the path to abuse.

Sports: The Yanks managed to come back from four down vs. the Devil Rays, who handedly won the season series. The Mets dropped to a new low. They finally had a chance to win in Atlanta, but the closer blew the (slim ... they got two in the first, and that's it) lead in the ninth. The Mets came back. The closer (who already threw over 30 pitches) came back and blew the lead again! The horrible thing is that he was left in until they loaded the bases.

Ah, but not so fast. There's more! The newest reliever, a White Sox closer reject but apparently having talent, came in. And, go the first two outs. Ran the count 3-2. And, gave up the winning runs. This is unconscionable. The team has the talent to do better than this ... not playoff, but not repeatedly pathetic efforts either. And, so, though they did clearly improve, there is reason to be dissatisfied.

Mayoral Race: Four democratic contenders for the primary, none really that exciting (one named "Anthony Weiner"), and none really likely to win vs Mayor Bloomberg whose Jets Stadium shenagians make me unable to vote for him. How exciting voting is!

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* A nod also to Al Franken today for putting the events in context, railing against the usual suspects, but also examining the new bankruptcy law and poverty in general. Hours on end of "look at how corrupt the response was" is good and all, but self-limiting.

A big FU to a local editorial who, after noting the feds were "slow," smeared the New Orleans' mayor, called Dean a "loony" (since 3/4 of what he says is right, what does that make you?), and missing the point so grievously (he thought the mayor's note in July that the city could not handle the removal of over a hundred thousand people was somehow a slam against the mayor -- it only underlines the importance of federal aid. Also, I doubt if my mayor could easily handle that many people leaving their homes all at once).

Oh, and since at least a "smidgen" of the malign neglect going on is racially based (see linked article), I guess Bush -- using his words -- should be shot. What an asshole.

No "Blame Game" and Other BS

And Also: There was an uplifting documentary on PBS earlier tonight about a teacher that taught Shakespeare to 10 and 11 year olds, who were amazing. It was depressing in a fashion, given how their leaders are generally failing them. Also, the teacher had a bit of a potty mouth, using a few curses when talking to them. Still, sounds like a great teacher.

What particularly annoys me about this administration and their ilk is their generally asshole tendencies, including a general lack of humility. This is deemed as weak, even when it is clearly a good idea to use some. For instance, a talking point is that we should not get into a "blame game" (unless anonymous administration sources are involved or local officials are targeted*) about the poor federal response. The true leader would accept that some things went wrong, counsel calm, and pledge to do all that they could do to handle the situation -- welcoming constructive criticism in the process.

But, we have the head of FEMA, the Dept. of Homeland Security, and so on refusing to do this. You know, assholes. The head of Homeland Security -- who pursuant to a pending law was supposed to move up eight or so slots in the line of presidential succession - is a questionable sort anyway. The person had a lifetime appointment to the federal appeals bench, one that had nice retirement benefits so that even a ten year stint would set him up for life, but he steps down to head a clearly thankless job under President Bush. Is he some kind of idiot?

I guess he did so for reasons of public service, but if this is how he is going to handle things, maybe he should have staid on the bench -- where he was but one of three in most cases.

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* In a particularly egregious move, worthy of our scorn, the Washington Post (Newsweek cited it unsourced) used said sources (an unidentified "senior Bush official"), in respect to the claimed delay (not true) of local officials to call a state of emergency. The WP corrected the error, but did not out the sources who lied to them.

The lede of a WP piece on the response did note: "Tens of thousands of people spent a fifth day awaiting evacuation from this ruined city, as Bush administration officials blamed state and local authorities for what leaders at all levels have called a failure of the country's emergency management." Again, what "administration officials?" Guess who is running things on the political front at the White House? Yes, you guessed it, Karl Rove and Dan Bartlett.

Same Sex Marriage In California

This is good news, but is announced in a poorly phrased way:

Unlike Massachusetts, where gay men and lesbians are permitted to marry because of court rulings, the legislators in California voted to amend the state's family code without the threat of legal action. ...

Californians voted overwhelmingly in 2000 for a ballot measure, Proposition 22, that defined marriage as between a man and a woman, but the legality of that law is now being fought over in the courts.

In a case stemming from a decision last year by Mayor Gavin Newsom of San Francisco to allow gay men and lesbians to marry, a San Francisco Superior Court judge ruled that the state law was unconstitutional but the ruling is being appealed.

In other words, the basic law that pending litigation aims to overrule is under "threat of legal action." The article's point seems to be that the Massachussetts Supreme Court declared the previous law unconstitutional, compelling the state legislature to act. But, clearly pending litigation is surely a "threat," especially given the liberal tradition of the California Supreme Court. In fact, recent rulings respecting lesbian couple child disputes suggests the way the courts in that state are going.

So, simply put, the legislature had to realize there was a "threat of legal action." Also, the governor's desire to punt until the courts decide is rank weenie behavior. I am unclear why he is against the legislature having the role in changing key social policy. It sounds a bit girlish actually.

Roberts Again

And Also: The Mets vs. the Braves is like a live action Wile E. Coyote / Road Runner cartoon, except that it seems at times the Coyote has a better shot. Chipper Jones has the "Roadrunner" role down pat, yet again beating the Mets. He even named one of his kids after the Mets' Stadium (Shea) -- so has that tongue thing down too. Anyway, Carlos Beltran: $17M (or something) well spent, huh? Bases loaded, one out in a big spot, and comes up small. Fairly typical.

Update: Some suggestion, logical I think, was made that O'Connor could stick around for the first round of cases, which might be decided by November or December (I assume). The Dems also have a reason to take her replacement slow, including causing the administration more trouble, after Roberts is probably (at least somewhat stupidly) going to be confirmed by a large majority. So, she might be on the Court (unlike Justice Marshall, her own health is not a problem) for a couple more months anyway.

First, in respect to this kind obit from the former clerk, I as an outsider concur. I don't share his ideological bent, but Rehnquist always seemed like a good guy and good Chief Justice. At least, in the sense of administration and so forth. The justices concurred, lib and conservative. Thus, the spleen against him from some fellow travelers of mine is not met by me quite as deep. But, I understand it, since it was earned in other ways.

Second, I really didn't think, as some did, that Scalia would become CJ. Roberts is a good replacement for Rehnquist -- he is sorta a younger Rehnquist in some ways (clerk, conservative executive official), though not in others (e.g., his advocacy work). The ideology appears to match, even (in some ways) Rehnquist's restraint in some ways vis-a-vis Scalia/Thomas. And, he probably will be confirmed by the beginning of the term, so no Stevens as acting CJ then.

A few problems. First, though it seems his personality fits the role, I wonder how his novice status will play as CJ -- Rehnquist was on the Court for awhile, while Burger and Warren was closer in age to their fellow justices and the latter had executive leadership experience. (Burger has problems in the CJ role).

Second, the O'Connor replacement is again a hot potato. I would not be shocked if the woman judge that some thought was going to replace O'Connor the first time is nominated this time. I think more pressure will be made for a woman or minority, and that judge was generally deemed fairly noncontroversial.

Anyway, the sentiment seems to be that O'Connor will still retire, in part to care for her husband. And, thus, there is no reason for her to stick around too long, since she would not hear cases that she would not vote on. The controversial rulings can be pushed back if a 4-4 vote is likely.

Overall, this works good for Bush. As to votes, this in effect makes Roberts confirmation less troubling on a "equal but not increased harm" approach (though making the records not released more important), while making the O'Connor replacement more open to scrutiny. Still, if Roberts is a bad choice, he still is now ... so vote against him.

My Bottom Line and Some Sunday Reading

Appears to be another free weekend on Dish Network -- lot of more channels, basically the same lack of material to watch. But, still, Rita Rudner was pretty funny and I finally get a chance to watch Weeds [lame episode]. All the same ... One of my new favorite slasher films, Sleepaway Camp II was on a regular pay channel. Lol, I love that Angela. Sadly, the actress did not do much more work to my knowledge.

[And Also: Mark Kleiman reminds us, as he himself was reminded, that the disaster is an interstate one -- some suggestion is made that actually things are worse one state over in Mississippi.]

A trivial but sure to be symbolic reminder of the disaster is that the New Orleans Saints, much like many others, are now homeless. And, as is sometimes the case, they are coming my way (a bit too crude? maybe) ... they are playing their first "home" game in Giants Stadium, the gate going to disaster relief. The money is nice, but the benefit to the Giants (who, believe, me, can use it) is unfair -- I think they should play at some neutral site. The relief can come when they play in the first away game in a major market or whenever best feasible.

A few more words on the story of the moment ... the disaster, not the death of the Chief Justice. My bottom line is that I understand that the world is not a perfect place and is filled with a lot of imperfections and problems. It is also, at least at my vantage point, is not a horrible place. There is some basic understanding of this, which is why so many people settle.

But, this only underlines the importance of a few basic things. An appearance and to some true respect a reality in practice of fairness, leadership, and humility. So, surely the criminal justice system is not perfect, but we aim for the best we can do, including stopping clear appearance of partiality. And, in these times, we want leadership and a reason to feel calm. This sort of thing simply cannot be quantified. It still is of fundamental importance. And, that is why so many people are upset.

Some are saying that the blame should be spread around. But, when we have national tragedies -- and this is one of them, surely by now -- we look at national leadership. Leadership that is now placing blame ... bloody hypocrites while their minions say we should not do the same (at least, if they are the targets). This aside from the fact that the settled plan does call for leadership from FEMA. Did locals misstep? One sort of thinks maybe so, since they do not have a reputation of being well oiled machines. New Orleans is not famous for its practical integrity. So, let the locals vote them out of office. The rest of us look at those who we voted for or voted against.

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Anyway, the NYT had some good articles today. One was a human interest story on a Baghdad radio station with a secular /feminist bent. It is what we root for, apparently since it's not our country. Another was a piece by Linda Greenhouse entitled "New Justice on Court Is More Than Just One Vote" -- and this is in regard to John Roberts! A change of even one justice affects the dynamics of the Court.

Finally, there is an interesting piece (with a good range of viewpoints) on local judges recusing themselves for personal reasons in abortion cases. Though not mentioned, this is akin to some cases in which a few federal judges (who had the ability to pick and choose) refused to take any more drug cases because of the mandatory minimums and so on. As the article says, we do not want judges to pick and choose, but what if we force them to do so? Will the teens going them for judicial bypass suffer? Maybe not ... as a look at one apparently pro-life judge who did not recuse himself suggests. Or, maybe, such ideological views one way or the other is how things should work in our system in which politics does affect nominations.

A word on Rehnquist ... some liberal sort was on Air America (let's be honest here) spitting on his warm grave,* explaining how he and his Bush-like ilk are ruining civil rights as we know it. This sort of attack annoys me to some degree, since it has a sort of spray of bullets with the hope of hitting something feel. For instance, the person railed against how the Rehnquist Court (get this) interfered with (shudder!) districting by overturning assumed racial motivated plans.

I assume the guy is against Baker v. Carr (one person/one vote ... districting) as well as the move against political gerrymandering (of districts). Ditto the usual gun near schools case ... this case was sooooo trivial. At least forty states have laws against this sort of thing. And, Congress just passed a new law against guns that traveled (as most do) in interstate commerce.

I know how this soundbite advocacy works, but believe me there's some really problematic cases to use (other than Bush v. Gore, but sure, repeat the Dred Scott of recent times as much as possible) here. You convince no one but the converted with this overheated rhetoric against strawmen.

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* One need not be hypocritical here and say one liked the guy's career overall, but seriously, the summary of his life was basically: he tried to stop people voting in Arizona, was appointed by Nixon (who couldn't get his name right), Bush v. Gore etc., and then he died.

One can recognize how he used his office to focus the Court, helped but not compelled all the way by how the country was going, in a certain way that is bad in various ways. But, he deserved a bit more respect than that. Laura Flanders, the strongly progressive host, tried to get in a "but you have something good to say ..." bit, but he basically pushed it aside as basically trivial. Oh well, I guess he does speak for many, but I (who find his reasoning wrong many a time) am taken aback a bit by such spleen. I guess it was earned.