It's the Phils, Time For The Mets To Lose

The anger at the first embarrassing loss didn't stop a worse repeat, including shutting down the scoring after an even more disgusting inning. The Mets were hot, the Phils hurting, the match-up after a win favored a split. Lost both, badly. Sorry, unacceptable.

Breastfeeding

Via looking into Whip It, I caught Drew Barrymore's famous 'dance' for Letterman, leading me to this clip somehow. Nice and down to earth and a sexy accent. See also here. Pet Peeve: lazy (often nasty) potshots from those whom don't deign to reason things out.

On TV

The Lucky Ones is good film with three very good performances (including favs of mine, Rachel McAdams and Tim Robbins) about three Iraq War vets (two on leave, one older guard officer whose term is up) taking a road trip. Story mixed bag, leads great.

MLB Based Protests

Early on, about a dozen protesters outside Wrigley Field handed out leaflets blasting Arizona's new immigration law that makes it a state crime to be in the U.S. illegally and lets police question anyone they suspect of being an illegal immigrant. The protesters were headed to a larger rally in downtown Chicago.

Later on, Cubs came back to win.

Quickies

Rich Hasen sets forth what amounts to an anti-Alito rant here that seems to forget that political speech is given higher scrutiny under First Amendment doctrine. BTW, Jay Leno? How f-ing lame. Pelfry ended his scoreless streak in total collapse mode, eh?

"Why Arizona Drew a Line"

[Update: Rachel Maddow interviewed a leader of a movement involved in the writing of this law on Thursday Night. It was not friendly -- she asked about various dubious associates of the group, while the leader suggested she was a tool of the Southern Poverty Law Center. Friday Night (update 2) she pointed out the guest misled or flat out misspoke/lied.

The basic substance of the law was not really discussed; the comments that the criticism was one-sided could have been addressed by Rachel reminding him some of it came from the Republican side. I'd also add that coverage on the content of the measure that goes beyond the one infamous aspect of the law would help too.]

Kris W. Kobach, a law professor at the University of Missouri at Kansas City, was Attorney General John Ashcroft’s chief adviser on immigration law and border security from 2001 to 2003.

I noted that appeals to the federal government to help Arizona deal with immigration problems is something of a fools' errand, since the demand for illegal labor will always mean a ready inflow of undocumented people. We can add to this a ready supply, worsened by NAFTA and other problems, which adds to the drug and violence in Mexico as well. But, we still have this guy speaking of the 'real' problem -- "President Obama and the Beltway crowd." Interestingly, he also notes Phoenix ("the hub of human smuggling") is a prime problem area. Why, one wonders, is the mayor there in support of suing to stop the law?

The law has received some strong opposition, as noted, Linda Greenhouse and others see it as a police state tactic. The symbolism is horrid. You need not think we are entering Communist Russia (after all, France etc. has permit laws of this sort, at least in some degree) to have problems with it. This without being concerned with certain aspects of strong illegal immigration laws that some groups in particular find very troubling if taken seriously. But, I will now focus on the points made in the positive op-ed here.

[1] The feds also require you to have immigration papers. The problem with this is that in practice this is probably only an issue when checks are made at places of employment and a few even more avoidable situations. It is quite different for a more intrusive in everyday practice state government, including local police, to set up such a regime.

[2] "Reasonable suspicion" is a reasonable rule. A patently suspect example is provided. But, in everyday practice, again, life is a tad more complicated. Inner city residents can tell you that this sort of open-ended inherently vague rule (especially with the provision where people can sue if the state doesn't enforce things) will involve much more iffy situations than that. "Reasonable" by definition means that many perfectly innocent people will be affected.

[3] Racial profiling is prohibited by the law. Uh huh. Oh come on. And, what does "as soon as is practicable" mean? The whole point of the law, underlined by this op-ed, is that the feds aren't doing their job enforcing things. A rule as applied to arrests also doesn't address racial profile stops, does it?

[4] The driver's license rule is helpful since it is deemed evidence of legal residence. I really haven't heard about this yet, but it seems a way to invite more counterfeit driver's licenses.

[5] The feds have not pre-empted this. The very case it provides, however, makes the discussion untrustworthy, since the op-ed said something has to be "expressly forbidden" while the opinion says it also can be implicitly so. I knew this myself. But, was never a chief adviser to Ashcroft, so who am I to say? The bottom line is probably a debatable question, but the op-ed is wrong on a key point.

Some aspects of the law, arguably, might be reasonable though the former governor -- no flaming liberal -- probably would have vetoed it given past practice. But, the most controversial section is symbolically and likely practically not reasonable at all. This op-ed, though appreciated, did not do much to convince me otherwise. The potshots at Obama didn't really help. Can these people not help themselves?

The controversial measure is already causing a lot of trouble and very well might not survive judicial review. It is ultimately more political than sound public policy. Given the subject matter, this is as unsurprising as it is unfortunate.

Empathy Again

SALAZAR v. BUONO: special note is deserved for Stevens' excellent dissent, his WWII service only adding to its conclusion. Also, Alito's concurrence alone is filled with alleged statements of fact and judgments ("disturbing symbolism" ... "unlikely to satisfy" etc.) that appears to be influenced by empathy. More than bare law is involved.

Mr. Jefferson and the Giant Moose

In this interesting little book, Lee Alan Dugatkin discusses Jefferson's attempt to address that "America was viewed by many Europeans as a degenerate backwater" in part via said moose. A look at natural history and its political implications from Jefferson to Thoreau.

24 Hr, 3-0

Such is the Mets line. First place lasts a bit longer ... Phils up next. After losing 22 in a row, the Pirates also won a series off the Brewers. Today in the 14th, scoring in three innings after the 8th. Two players were ejected. Bit of spunk there. Another crazy game.

Cross Case

An analysis of a split decision with more sides than a cross and ends with "to be continued." This was expected. Stevens' dissent was joined by Sotomayor. Kennedy accepts use of selective religious means to honor soldiers but not all public uses of crosses.

Arizona Immigration Law A Whole CAN of Worms

It is problematic for many reasons (e.g., suing when federal law isn't enforced?). But, putting aside Sen. Graham and some hypocrisy (4/27), some national panacea won't come. There will always be illegal aliens, especially as long as there is a demand for their labor.

Two more "don't trust women" laws passed

And Also: Now that Linda Greenhouse only guest blogs, she is much more blunt ("Breathing while undocumented, without a civil liberties lawyer at hand, is now a perilous activity anywhere in Arizona.") A young John Roberts has a cameo.

[Update: Rachel Maddow's segment about these laws on Wednesday noted the forced ultrasound requires vaginal insertion. Sounds great for rape victims! This sort of invasive procedure has clear 4A implications. See, e.g., here.]

Two laws were passed over in Oklahoma over the governor's veto:

Though other states have passed similar measures forcing women to have ultrasounds, Oklahoma’s law goes further, requiring a doctor or technician to set up the monitor where the woman can see it and describe the heart, limbs and organs of the fetus. No exceptions are made for rape and incest victims.

The second measure passed into law Tuesday protects doctors from malpractice suits if they decide not to inform the parents of a unborn baby that the fetus has birth defects. The intent of the bill is to prevent parents from later suing doctors who withhold information to try to influence them against having an abortion.

The governor said the second law is immoral:

“It is unconscionable to grant a physician legal protection to mislead or misinform pregnant women in an effort to impose his or her personal beliefs on a patient,” [Gov.] Henry said.

We recently saw two laws passed by a nearby state also with contrasting functions -- one required more effort be made to see if the woman going for an abortion was not mentally unbalanced while the other removed mental health as a reason for late term abortions. Here, one provision forces a woman who wants to have an abortion to listen to information while those who might originally not have done so are denied a means of restitution if a physician leaves out important information about the fetus. Physicians can act like priests and get away with it.

This underlines the double standard that these laws often tend to obviously have. Teenagers need to get notification or consent (with some often byzantine judicial bypass regime in place) before having an abortion but not before they plan to give birth.* Women are forced to undergo a medical procedure even after being raped, but only to try to prevent abortions. Such a law was already declared unconstitutional, but this is not a barrier for anti-choice legislators.

And the beat goes on.

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* See, e.g., this article and sources cited therein. One point:

The majority of states require minors to engage their parents or legal guardians in their choice to obtain an abortion, but not in decisions to give their babies up for adoption or to become parents.

This is a moral choice to favor childbirth even though often assistance (from parents or otherwise) for the other choices are as or more important. Many years later mourn giving up children for adoption. Many have children who they might not be able to handle or who it might be more moral to not have in the first place.

A neutral law that requires parental involvement can have problems too, but at least it would not be so slanted in favor of the anti-choice side while claiming to be in the best interests of the teenagers.

Boobquake

Social protest, science experiment or just fun? You decide!

Justice Clark's Abortion Article

As I briefly noted earlier, I finally had a chance to read an eleven page influential law review article by the then retired Justice Clark, "Religion, Morality, and Abortion: A Constitutional Appraisal" (1969). It was cited in various lower court rulings decided pre-Roe , by Justice Douglas a few times as well and briefly cited by the majority ruling in Roe. Supreme Court links here. It is unclear to me why it is so hard to find online; it is not even on Lexis. Don't know about Westlaw.

In the first case Douglas cited the article, he did so to underline that abortion is a disputed moral/religious subject matter ("it is, of course, caught up in matters of religion and morality"), so leaving it up to juries to determine if one is required for "health" is the road to arbitrariness. Clark cited the religious debate over the issue, belying the idea that "Christians" cannot have an abortion by definition:

Throughout history religious belief has wielded a vital influence on society's attitude regarding abortion. The religious issues involved are perhaps the most frequently debated aspects of abortion. At the center of the ecclesiastical debate is the concept of 'ensoulment' or 'person-hood,' i.e., the time at which the fetus becomes a human organism. The Reverend Joseph F. Donseel of Fordham University admitted that no one can determine with certainty the exact moment at which 'ensoulment' occurs, but we must deal with the moral problems of aborting a fetus even if it has not taken place. Many Roman Catholics believe that the soul is a gift of God given at conception. This leads to the conclusion that aborting a pregnancy at any time amounts to the taking of a human life, and is therefore against the will of God. Others, including some Catholics, believe that abortion should be legal until the baby is viable, i.e., able to support itself outside the womb. In balancing the evils, the latter conclude that the evil of destroying the fetus is outweighed by the social evils accompanying forced pregnancy and childbirth.

Note the "viability" dividing line. Justice Douglas "would affirm the dismissal of these indictments and leave to the experts the drafting of abortion laws that protect good faith medical practitioners from the treacheries of the present law." He cites Clark's "preference" that courts basically rely on the medical judgment of doctors here. And, Justice Blackmun in effect did so. In one collection of Douglas' communications, Douglas noted at one point while Roe was pending that he favored a line being drawn at the first trimester. The law review article makes clear that Clark does not think conception should be the line drawn. Douglas quoting in Roe's companion case:

To say that life is present at conception is to give recognition to the potential, rather than the actual. The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity -- the known, rather than the unknown. When sperm meets egg, life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of life takes time to develop, and, until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide, and as we have seen, society does not regard it as such. The rites of Baptism are not performed and death certificates are not required when a miscarriage occurs. No prosecutor has ever returned a murder indictment charging the taking of the life of a fetus. This would not be the case if the fetus constituted human life.

But, Clark discusses how the matter is debated by various experts. Viability as such is not the line he chooses (he notes it is not the line in all jurisdictions; if it is, it is not set in stone) though it was favored by the lower courts that decided the abortion issue pre-Roe. Legislatures would have some discretion to determine "that point between prevention of conception and the viability of the fetus" where regulation or even prohibition is allowed. But, their discretion would be limited. Clark had a firm belief in a right to privacy:

Unless the State has a compelling subordinating interest that outweighs the individual rights of human beings, it may not interfere with a person's marriage, home, children, and day to day living habits. This is one of the fundamental concepts that the Founding Fathers had in mind when they drafted the Constitution.

The article begins with a notice that current law and policy was no longer lagging so much behind actual practice, Kinsey cited to show how the two often did not mesh. Clark is clearly against "hypocrisy" in this area. The realization by doctors and others that reform was required was clear. He cites Holmes to argue that "moral predilections" should not be used to settle legal rules in this area. He also writes appreciatively of the rising concern of the "double standard" in being able to obtain abortions by social status and financial ability. Clark easily could have cited the public clinics at stake in Griswold on this point.

Since the "collective conscience of our society" is key in determining fundamental rights protected by that opinion, these societal developments are of particular importance in constitutional analysis. Likewise, Griswold underlines a degree of liberty in this area, even when human life in some form is at stake. But, case by case developments cannot solve all the questions and fine lines required here. So, he ends his article with a call for legislative action, circling back from the opening quote, citing Nehru:

Thought without action is an abortion; action without thought is folly.

And, as Roe noted, he pointed out a few states have already "led the way." A lot packed into those eleven pages .. and for a law school (Loyola) associated with the Catholic Church to boot! I wish it was open to a wider audience.

Mets OD?

For some reason, ESPN scheduled three Mets games in eight days (two Sundays and tonight). Yesterday's game was shortened to 5 (+ one pitch) and today's was rained out. Guess who plays next Sunday night?

Come on Hilden!

And Also: Ten Things I Hate About Me by Randa Abdel-Fattah might be a bit simplistic at times and settles a bit too predictably, but I basically share the overall positive review here. After all, lots of adult books are a bit simplistic too.

Make no mistake, then: The truth is that the Court simply doesn't care enough about animals – their suffering, their lives – to protect them in the same scenario in which it would quickly protect humans.

I expect more out of Julie Hilden than this emotional appeal, even if she supports animal rights. The ruling was first noted here and a link to another person who criticized it was provided with the note that I refuted (or tried to) the claim over where it was made. But, Hilden is more of a First Amendment absolutist. Up to a point, I guess. The "as applied" approach she suggests might have been best here would poison you in the end numerous times if applied consistently.

The basic problem with the law according to the Supreme Court was that it is overbroad. When it comes to the First Amendment, even laws that have some legal applications are repeatedly struck down if significant improper applications are possible. The burden of proof here should weigh heavily against the censorship side. A law that narrowly addresses a particular harm remains possible. But, Hilden et. al. continuously cite the horrors of crush videos as if the Court "crushed" the chance to stop their sale in interstate commerce. It did no such thing:

We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment .

Hilden (along with Alito, who she praised) wanted the Court to interpret the statute with enough discretion that it not only is upheld to deal with crush videos but other types of harm. "Crush videos" (image of crushed kittens) is repeatedly cited as if this is what the law is all about. Not true. After all, the ruling is not about crush videos. It deals with dogfighting videos. And, if she is concerned with animal cruelty, why an exception for bullfighting? This was cited by the ruling; the ruling did not solely rest on the problem that hunting might fall within the law's ambit. The oral argument got a bit ridiculous talking about different kinds of possible animal fighting, but the point is true enough. Why is dogfighting horrible, but bullfighting not in this context? Culture? Not exactly animal rights focused, that.

The ruling underlines the folly of trusting the mercy of the prosecutor, underlining this very point:

This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.” See Statement by President William J. Clinton upon Signing H. R. 1887, 34 Weekly Comp. Pres. Doc. 2557 (Dec. 9, 1999). No one suggests that the videos in this case fit that description. The Government’s assurance that it will apply §48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.

As the opinion says, when it comes to free speech, a special rule applies that doesn't apply in all cases -- overbreath that covers protected speech is of special concern. Hilden does not adequately counter this section. Her looser rule would cause problems in other areas. This includes an area of settled law that I share her disdain for -- obscenity. This was my point elsewhere -- repeated references to child pornography does not erase that the opinion here talks about depiction of animal cruelty. Depiction of child porn is allowed.

A law targeted purely to animal cruelty itself would not be the same thing, at least pursuant to this opinion. It also makes some difference that child pornography already is a settled exception, one that already overused in some contexts. Yes, obscenity law is horrid. But, Alito's dissent won't change that; it will make it a bit easier to expand. And, if "snuff videos" would be an exception is neither here or there, when the opinion noted that "a statute limited to crush videos or other depictions of extreme animal cruelty" might be constitutional.

The law should/could have been written more narrowly; when speech is involved, that is (or should be) a steady reminder. The message sent, including not trusting discretion that often is not applied that well, was a good one. No sale.

Sports Update

A college softball game was on yesterday and showed the importance of that final out. One side blew a four run lead but the other could not get that last strike in the bottom of the frame. Lost 6-5. Mets doing well now, even the weather helping yesterday, but it's a long season.

A bit of reading

I was drawn into the lives of the characters in the The Piano Teacher but found the resolution a bit choppy and somewhat unsatisfying (especially as to the Eurasian's fate). Also, finally read the whole of "Religion, Morality, and Abortion: A Constitutional Appraisal," quoted in various abortion rulings. Brief, but interesting.

Open Disclosure

And Also: Craig Ferguson was involved as a writer in a spin-off of Saving Grace (he had a supporting role). Most episodes of the first three seasons are online. The first episode was amusing and generally well done.

[This is in reply to Dahlia Lithwick's discussion of a death penalty case where the judge and prosecutor were later found to be having an affair (when's the Lifetime movie?), a problem even in a less serious case. I'm curious if the other issues in the case is one reason why no justice has appeared to dissent in denial of cert., the issues blocking a direct address of the issues or making it a clear review of a death sentence. OTOH, again, even a misdemeanor conviction on these facts would be problematic.]

In 1969, the Greenberg Commission, appointed by the Illinois Supreme Court to investigate Sherman Skolnick's corruption allegations leveled at former Chief Justice Ray Klingbiel and current Chief Justice Roy J. Solfisburg, Jr., named Stevens as their counsel, meaning that he essentially served as the commission's special prosecutor. The Commission was widely thought to be a whitewash, but Stevens proved them wrong by vigorously prosecuting the justices, forcing them from office in the end. As a result of the prominence he gained during the Greenberg Commission, Stevens became Second Vice President of the Chicago Bar Association in 1970. Stevens's role in the Greenberg Commission catapulted him to prominence and was largely responsible for President Richard Nixon's decision to appoint Stevens as a Judge of the United States Court of Appeals for the Seventh Circuit on November 20, 1970.

Justice Stevens writes about his involvement in the foreword of this book and those interested can "search inside" and read his remarks. They are well worth reading, including the value of a limited scope of investigation, a distinct contrast to the long drawn out affairs of some of the more "independent" prosecutors of later years. Another matter discussed is the importance of appellate judges publishing their opinions, including dissents. This was in part showed by a judge holding back from publishing his dissent in a case where improper influence was alleged:

"If there is disagreement within an appellate court about how a case should be resolved, I firmly believe that the law will be best served by an open disclosure of that fact, not only to the litigants and their lawyers, but to the public as well."

Charles Dean Hood's challenge on the impropriety of the affair was rejected 6-3, the majority of the Texas Court of Criminal Appeals disposing the case with the statement that it "fails to satisfy the requirements of [the relevant rules]" without saying why. This after a lower court found the judge and prosecutor “did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship.” No wonder:

21 former judges, government officials, and prosecutors filed an amicus brief in support of Charles Dean Hood’s petition to the United States Supreme Court asking the Court to hear the case. ...joined by Kenneth Mighell, former U.S. Attorney in the Northern District of Texas, Sam Millsap, former District Attorney for Bexar County, Texas, William S. Sessions, former FBI Director and federal judge in Texas, Mark White, former Texas Governor, and others

I tried to find the actual opinion dealing with the matter. Problem is the opinions in his case are repeatedly unpublished.* This is often the case for those deemed unimportant, but it also has the tendency at times to hide some important cases as well. In cases like this, an "an open disclosure" is particularly important. And, if one or more of the justices think this case warrants review, their own "open disclosure" of the facts are as well.

One sentence refusals and opaque unpublished rejections of serious claims is not the way to guarantee "the Nation’s confidence in the judge as an impartial guardian of the rule of law."

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* One [Lexis] summary suggests the problem:

US Supreme Court certiorari denied by Hood v. Texas, 128 S. Ct. 48, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9115 (U.S., 2007)
Writ of habeas corpus dismissed Ex parte Hood, 2008 Tex. Crim. App. Unpub. LEXIS 518 (Tex. Crim. App., Sept. 5, 2008)
Motion denied by, Writ of habeas corpus dismissed, Stay granted by Ex parte Hood, 2008 Tex. Crim. App. Unpub. LEXIS 520 (Tex. Crim. App., Sept. 9, 2008)
Habeas corpus proceeding at Ex parte Hood, 2008 Tex. Crim. App. Unpub. LEXIS 853 (Tex. Crim. App., Nov. 19, 2008)
Writ of habeas corpus dismissed Ex parte Hood, 2009 Tex. Crim. App. Unpub. LEXIS 561 (Tex. Crim. App., Sept. 16, 2009)

unpub = "unpublished"

A bit of research

Cheers for this piece where someone checked to see if touching the mound like A-Rod did to piss a pitcher off was verboten. The NY Daily News re-cap cited what happen but didn't check to see if others know of this "unwritten rule." Another incomplete article.