A Decade Slips Away

The political winds of this decade started fairly well and then dropped off. 2016 was a travesty. 2018 (including in NY) brought things more in the right direction. Impeachment, flawed as it might be, was a key moment in 2019. Personally, the decade was rather mixed too, but new decade, so you know ... Happy New Years. (Will skip the latest Biden stuff.)

HA HA HA HA (Week 17)

excuse me what https://t.co/pOoBpVvEaI

— Molly Knight (@molly_knight) December 29, 2019

Bills limp into playoffs with loss vs. Jets, but the upset of the day is Dolphins (who were slaughtered in the first match-up), who came back to win (with very little time left, which was key, since they were only up by three) to deny the Pats a bye. Giants didn't play spoiler, Eagles play Seattle (loser of final game by a damn hair at the goal line) with Titans getting final AFC spot. Saints wound up 13-3 with no bye, with dubious late calls in two games helping out. Stuff happens, but you know they also missed the Super Bowl that way too.

Meanwhile, a bit more Christmas movie fun, if on demand since all channels other than Hallmark stopped showing them. A Date Before Christmas (flagged on Twitter because of a charming performance by Morgan Fairchild as Mrs. Claus though she isn't the only Friends face that pops up) was cute. The Holly and the Ivy, an old British film, is also charming.

THE LONG REACH OF THE SIXTIES: LBJ, Nixon, and the Making of the Contemporary Supreme Court

"Kalman presents an accessible, lucid brief on how our Supreme Court appointment system became the mess that it is." The author is careful not to promise she was teaching any big lessons as she covered the LBJ and Nixon appointments. The book also was published early 2017, before any Trump asshole justices. Felt it started a bit slow but got into it more later. You almost was optimistic early in the Fortas CJ nomination process, but it still seems the whole thing was a total screw-up on LBJ's part. Good but maybe not great read.

Trump Commits More Impeachment Worthy Offenses (aka Another Day Passes)

Trump is trying to out the alleged Ukraine whistleblower on Twitter.

Some will not take someone that even the likes of the head guy at liberal leaning Dorf on Law has dismissed to me personally as a kneejerk types a good judge. But, when it comes to how bad Trump is, that level of disgusted cynical partisan (though repeatedly he still leaves something to be desired) is appropriate.

Trump retweeting right wing conspiracy b.s. on a steady basis is not okay.  "Trump being Trump" at this point is akin to "arsonist being an arsonist" -- you'd keep the person out of sensitive buildings without close supervision.  President Andrew Johnson, in a largely forgotten bit, was partially impeached for "attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States." This calls to mind Trump's campaign rhetoric and like with the Ukraine Extortion Racket, he is a repeat offender here.  The problem is that we saw how far criticizing this in 2016 went with people mostly resigned about how uncouth the guy is.  Yeah.  LBJ was uncouth.  This guy is f-ing disgusting.

"Facebook has a policy against naming the whistleblower, and told BuzzFeed News on Thursday that any mention of the name of the person believed to be the whistleblower violates its coordinating harm policy."

Even with Andrew Johnson, when a Johnson even campaigning itself was notable and there was a higher degree of propriety regarding public speech, there was not enough support to even bring it to a vote.  But, Trump at some point makes Johnson's "Swing Around the Circle" rhetoric tame, particularly given the reach of his Twitter. Calling Comey "scum" is notable enough. [See Aaron Ruper Twitter.] No wonder serious splits among evangelists (note it always was much more "white" evangelists anyhow, a qualifier notable in its absence) are starting to come out. This guy is in the minds of many after all the President of the United States.  But, retweeting the supposed whistleblower?

How exactly can this be handwaved?  As I said there, it isn't the case that there was no coverage.  Newsweek (where one can find out, including by links to Buzzfeed, that Twitter said retweeting would not violate its standards, but outing the alleged whistleblower would violate Facebook standards).  I continue to be wary at the limited impeachment counts though hold to my belief that (1) the "consistent/previous" type language makes it wider than some make it out to be (2) realistically, it's a synecdoche of wider wrongs as seen repeatedly when people talk abut them. Nonetheless, the ongoing actions here suggest the value of an obstruction of justice count. Among other things.

It's hard to keep up the outrage without, especially since there is a general feeling by many that reality is not as bad as all that. At least, you cannot hold up that level of outrage and disgust on a steady basis.  Thing is that at times it is warranted.  Jim Crow was a thing, a bad thing, even if only a small minority was strongly against it in practice. As a new decade approaches -- I'll take the side that thinks 2020 is that -- we need to stay firm here.  It's basically holiday time as is, making it harder to spread the news, but so it goes there.  As some attempt is made to pressure a few Republican senators to at the very least make the impeachment trial kinda actually a trial, we continue to see horrible things that were there all along. As with Ukraine, this all is "consistent" with "previous" stuff.  It's still real bad.

Mr. Biden was asked by The Register whether he stood by previous comments that he would not comply with a subpoena to testify in the impeachment trial. He said he did, and explained that complying with a subpoena and testifying would effectively allow Mr. Trump to shift attention onto Mr. Biden and away from the president’s own conduct. Mr. Biden made similar comments to reporters aboard his campaign bus on Friday night.

While the idea of witnesses called on behalf of the Senate, or at the request of the House of Representatives in the form of managers putting on a case, is put out there, this latest Biden thing to me didn't help.  Biden is obviously right that there really is no good reason for Biden to be subpoenaed as a whole and it is likely just a way for Trump/Republicans to throw smoke. OTOH, I'm not sure how unlike that is as compared to many witnesses called in various civil and criminal trials. And, the rules are more lax in impeachment trials.  Biden had no grounds to say that.

Some with less concern for legal niceties appreciated Biden's comments; my reaction (colored somewhat by not being a fan anyway) was negative. My thought was not only that he had no right to challenge but it would give aid and comfort to the other side's refusal based on what basically amounts to "they aren't going to be fair" allegations.  Democrats are trying to get support for witnesses. Preemptively refusing theoretical subpoenas is not really ideal.  And, as noted in that article, Biden finally got around to realizing it.  More depressing dubious strategic decision-making.

It is realized, concerned people will be sure to emphasize, that this is a lesser problem to Trump aiding and abetting right wing trolls against the forces of proper government.  The lesson is that being a whistleblower is a dangerous affair and you shouldn't make waves.  The putative executive head rather help war criminals.  We knew this in 2016. It was ridiculous then to think he was a credible person for the job.  One party refuses to admit this or even be "disturbed" (as the gentle lady from Alaska is reportedly of Moscow Mitch totally being in hoc with Trump on impeachment, as you know as the leader of a separate branch naturally should be) that much.  Impeachment is a sort of "you know, I have concerns" thing, not "obviously he should be, I'm just concerned on it being so limited."  The state of things as the decade runs its course.

The 2010s left something to be desired for me personally. It is ending rather dubiously for the country though impeachment was a little sign of sanity. Well,at least we aren't the UK!

Holiday Season Marches On

Today is Boxing Day ("boxes"/presents for servants; United Kingdom) and the first day of Kwanzaa (has candles like Hanukkah but seven days and principles that sort of remind me of Unitarian-Universalism; it is an African cultural holiday and secular humanist in origins).

Merry Christmas

NFL Update

We are coming down to the wire. After three Saturday games where the underdog put up a fight but lost in the end (including the Bills vs. Pretty Boy), the Jets (the Steelers QB lacks starting to become an issue; 16-10) and Giants (needing OT after the back-up for the Redskins put up some tying drive, making it 35 all late) won. Arizona upset Seattle though it still will come down to their final game vs. the SF. Bengals managed sixteen points in the final minute but still lost on the final play of overtime vs. ... of course, the Dolphins. MNF: Packers clinched division, the Vikings defense faltering eventually, offense never really showing up.

Happy Hanukkah and Festivus

Hanukkah this year runs from the evenings of the 22nd until 30th. I again provide this past discussion (and later versions on this blog) and [still] wish to find a good book that provides the surrounding history for the general reader. Both the immediate Maccabees revolt and developing holiday. The Slate article was written by a Jewish scholar who co-officiated Chelsea Clinton's wedding some years afterwards. Happy Festivus (today) as well.

The Secrets We Keep (and Telling the Whole Story)

Before leaving, they leave quicker there I guess, the defeated governor of Kentucky went on a bit of a pardon binge that involved some rather controversial cases. These were highlighted, especially one or two involving horrible crimes and apparent financial bias [think Marc Rich]. But, as seen here, the guy not only also pardoned more sympathetic types but showed some concern for criminal justice during his term. Criticism of heavy-handed solitary pardon power is valid -- it should be done in an organized way -- but there is a reason multiple criminal justice warriors were wary of the criticism.

A trip to the library brought two good finds, Good Talk and also The Secrets We Keep, a Reese Witherspoon [she has a book club] pick as it turns out. It a fictionalized account of real events, on one front about the author and his "Lara" of Doctor Zhivago (I have not read/seen it), and on the other, the plan to sneak copies into the Soviet Union. Meanwhile, we get a look at some of the women who worked at the CIA both as "typists" and spies. Good stuff at the website and more video can be found online. It also is being made into a movie.

On the impeachment front, the last comments on this thread are ... well, amusing is one way to put it. The guy continuously challenges my good faith (easier than actually refuting my arguments), and then tacks on (with a dig that ignores the repeated efforts of mine to do historical research on matters) something that basically supports my agnosticism on something I said was "academic" anyway. If I wanted Moscow Mitch to lose, that would be a rather piss poor way to do it. Anyway, in his own way, he's as bad as the B. trolls there.

History: IMPEACHED!

The Pelosi moment pic.twitter.com/dfqzuiicpN

— Jennifer Epstein (@jeneps) December 19, 2019

Two Dems, one planning to change parties, who voted against the inquiry voted "no" while one voted "no" on the second (Obstruction of Congress). Not a single Republican even voted for the rule that allowed for the debate/vote today. Two Republicans didn't vote; one Democrat also was away. Tulsi Gabbard voted "present" on both. Amash "yes" on both.

It's depressing how so many Republicans talked about how the Democrats just "hate" Trump and so forth. At least one said Jesus had more due process from Pilate. I figure a handful at best suggested Trump maybe did something wrong but wanted the process to continue. Democrat after Democrat said how serious it is, how they weren't gleeful (many honestly noted they at first didn't want to impeach) etc. Some very powerful remarks. Touching to me, even if one can be all cynical or want more or expect it just to die in the Senate. Enjoy the moment. Fight for the best fairness and punishment of Republicans possible in the Senate.

Impeachment Eve

I suggested back when the Mueller Report was dropped that the House should have some sort of "impeachment inquiry" (was open about the terminology), which could be an extended process.  The thing for me was that Trump, especially the matters around that report but also other stuff, required something more than ordinary investigations.  The breadth of his problems could require multiple investigations with different battles over subpoenas or whatnot.  Battles over his tax returns might be different than investigation of the Russian interference with our elections.

Anyway, that was not what happened, and it seemed to take a long time to even being the battle over subpoenas while there also were continuing extended battles over emoluments as well.  The fight for his tax returns, e.g., seemed to take a long time.  It was depressing though how these things go, let's remember the House Dems just gained control of the House in 2019 and the government shutdown delayed things too.  Why emoluments battles still are taking so long when they could have started back in 2017 is less clear.  The delays underline why "let's hit a pause and battle in the courts for subpoenas for Bolton et. al." seems like a bad idea.

Things sped up with the Ukraine Extortion Racket  being exposed in late summer.  The biggest drama was the testimony of various fact witnesses in the House Intelligence Committee. The Mueller Report should have resulted in an extended process (there were investigations in Congress over the events covered to some degree, but the Report could have provided a way to comprehensibly address things, including Trump obstruction) of similar nature, instead of Robert Mueller (months later) testifying and people belittling it when it happened.  Trump basically got a pass.

The testimony underlines the potential of a major impeachment inquiry process that was crafted for the biggest dramatic effect as well as having some value to bring out important facts.  For instance, the Oversight Committee (with AOC) had some powerful moments, and one can imagine financial committees doing something with the emoluments and other issues.  Was there an excuse made that litigation was pending to release important financial records?  As seen in the Ukraine matter, other ways were available to get stuff out there.  Did Schiff leading the committee help some?  I think the key thing was that the Ukraine Extortion Racket was so easy to show as a blatant wrong. 

Still, again, I think more of the same could have been out there if things were handled differently.  This all might be repetitive but I do think a lost opportunity should be flagged.  There were some on what I might call "Team Nadler" who supported an impeachment inquiry earlier.  Anyhow, after the fact witnesses, the next two steps -- Judiciary and Rules (today) -- had less drama.  The law professors (including the fake allegation of going after Barron Trump for use of word play in a single comment) has some bite.  The next part was repetitive.  The best part was a bunch of personal statements by Judiciary members that basically said "we are here to serve the public, but Trump forced our hands." The Republicans mostly clowned.  Rep. Jamie Raskin, professor extraordinaire, was the star of the show today during the Rules debate, which seems mostly a delay mechanism by the Republicans.  But, not by much, since things are suddenly quick -- a few legislative days handled these two steps. 

Impeachment, only the third time on this level in our history, is scheduled tomorrow. With the conclusion that the Senate will simply not convict, some basically seem to handwave this as mostly meaningless. But, impeachment to me is not so trivial.  And, as I noted already, the limited nature of the impeachment is misleading.  The impeachment is being carried out with the recognition of his wider crimes, the 2016 election specifically alluded to in the text.  A person is however a bit clueless if they do not understand that things go even further than that.  Republican attempts to ridicule the limited evidence is hard to take seriously.

As is, the assumption is that the trial will be in January. I think this is useful in that it puts things ahead of February primaries though the three senators running (is Booker still a thing?) might be making final preparations before then as well.  Just what it will entail remains to be seen.  And, it doesn't mean everything else will suddenly stop.  An impeachment directly related to interfering with another election given the involvement of the current leading candidate (sigh) is time sensitive.  It's an open wound overall: Trump used authorized foreign aid as a level to promote his own ends. How can he be trusted with money of any type that might be used in a similar fashion?  But, investigations will continue, as they always do.  Career criminals do not only have a single prosecution.

===

I was originally going to tack on a couple more religious related cases to add to my big holiday display entry.  One would be Lee v. Weisman, especially Justice Souter's concurrence, which provides a historical analysis (one of many which shows the liberal possibilities of originalism) mixed with his support of precedent. This includes another explanation why Thanksgiving Proclamations (which Jefferson and Madison were not overly comfortable with anyhow) does not suddenly justify prayers and so forth.

Justice Souter also dissented in the Van Orden v. Perry Ten Commandments case (largely fact based) while writing the majority opinion in the companion case. The note here would be Justice Stevens' more extended dissent, which also explains why they are different from certain "civic religion" moments like "God Save This Honorable Court."  One footnote also answers the "this has been around for so long before someone sued" argument by citing a range of lower court cases, one going back to the early 1970s.  I cited a few old cases before and more could be seen here. The district court ruling there actually held against the Ten Commandments monument in question.

Shades of abortion and other sexual privacy related issues -- there are a myriad of lower court opinions that cover things in various ways, including at times splitting things in ways not found my the majority of the Supreme Court.  Back in the day, it was a trip to the library downtown to even read federal reporters.  Now, you could read a bunch of things online, and not just via paywall legal databases (many articles are so blocked).  Fun!

SCOTUS Watch, Hallmark Reconsiders etc.

Let's lead with something nice. Hallmark (or their parent company), after a lot of negative reactions, decided it was wrong to pull the wedding ads for having women kissing.  The whole thing is a self-own by the conservative group involved when the net response is this:

Hallmark said it would be "working with GLAAD to better represent the LGBTQ community across our portfolio of brands" and "reaching out to Zola to reestablish our partnership and reinstate the commercials."

Great news.  The network is by nature conservative though it doesn't lay it on thick as seen by the typical movie ending with the leads kissing.  There is a charming older (2011) film entitled Trading Christmas with one of the two couples (the woman is played by Faith Ford and is quite good; she is a widow)  actually making out during the film and regular views have a reason to be shocked at the whole thing.

The channel rarely has religious content though certain films do have it as a component of the film (one volunteers at a church related program, for instance).  So, someone who is liberal minded and not a fan of showy conservative material (sometimes on UP Channel, let's say) can enjoy the movies while admitting their problems (e.g., the lack of racial diversity as compared to Lifetime, which just last night had a black woman lead in one of those royalty romances that even on other channels nearly never -- know of one -- involve a woman royal in the lead).

But, conservative minded Christians in generally probably can comfortably watch the average movie.  OTOH, "controversial"[which the company first flagged the commercial] includes making a show out of being conservative.  So, especially with people already complaining there are not even any openly gay characters (one actor is openly gay in real life ... more probably ... but saw it referenced in an article), going out of the way to remove the ads was a bit much.  The ad was really a safe way to barely put its toe in the water (it does have gay and lesbian themed greeting cards after all) to reflect modern times.  Yes, someone would be upset but I'm sure there is something else in one of the movies to upset someone too.  And, thus the mea culpa.

===

A nice teachable moment that has potential to turn out positive in the long run.  Meanwhile, we have our normally scheduled football programming. Eli Manning had a promising first half last week but the offense came to a halt in the second.  It looked like it would be a problem this week to vs. the Dolphins, but it turned out it was the Dolphins due for a really bad day.  THIS time, the Giants found a way after halftime and the score turned into a laugher.  It is likely Manning's final home game as a Giant and we can look past the competition to be happy for him.  It is sorta also the team's only clean win (Tampa blew it at the end; the Redskins was a mess at the time, but the young QB and company was rather messy in the game too).  Can still play spoiler.

The Jets (TNF) ran into the buzzsaw of the Ravens, who even while up big go for it on Fourth Down.  The Bills had the Sunday Night Game and the "who it the QB this week" Steelers gave them a run for it, down to the end where a penalty gave them forty more seconds for a respectable shot (toss in a roughing call) but that rookie QB wasn't quite up to it.  So, the Bills are in the playoffs and have the most wins (10) in this century.  [They did get in once 9-7.]  SF was the upset of the day with the Falcons ("we aren't THAT bad!" run of games) having a TD reversed and a non-TD reversed to win at the very end (:02 left, SF fumbled the final play & the Falcons scored again!).  Dallas was sorta an upset but the Rams aren't that good.  Dallas/Eagles both 7-7.

===

SCOTUS. Well, as usual, the Friday grants were followed by more boring orders.  The five page job shorter than usual with the usual caveat that there are odds and ends that a key would help decipher and interesting cases not taken.  For instance, one of the cases denied cert. was "relisted," suggesting one or more justices found it interesting:

In an opinion that began with the obvious quote from Anatole France, the U.S. Court of Appeals for the 9th Circuit held that the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when they have no home or other shelter to go to.

Looking, it was written by and joined by two "controversial" 9CA judges with a "look at us" dissent when en banc review was denied.  The case, after extended procedural discussions, basically rely on a 1960s duo of cases that barred prosecuting drug addiction but allowing it for public drunkenness.  The first is a condition that could not be avoided and here without the means, so is public homelessness.  A related case was decided there in the past.  The Supreme Court has basically underenforced the provision in question, the cases basically all capital punishment in nature or involving minors (no mandatory LWOP) or prison conditions.  ONCE it held a non-capital LWOP punishment (and that 5-4) as unconstitutional.  It also had limited cases involving fines.

But, the other cases that leave open more coverage are still good law and it's good that it still can have some bite. A taking case is also flagged here. The Supreme Court might have some unscheduled order, but they are officially done for the year.

(Since the press release/media advisory/speeches pages are so rarely used, just to flag it,  a media advisory was posted last week regarding seating for a January 2020 oral argument in an important religious funding case.)

Update: Well, okay. So, SCOTUS did grant some cases on Wednesday, including a potentially fairly significant pair of cases to clarify the rules regarding applying employment discrimination rules in religious organizations like schools. 

Book and TV Watch (FU Hallmark)

Graphic fiction and nonfiction is often a great medium and by chance found a very good book by Mira Jacob set around her talking to her son about race, the whole thing overall autobiographical. It is funny, touching, informative and the graphic style (the pictures are like cutouts) is cool. Not sure about her over 500 page fiction book though.

It is almost silly this time of year with Christmas movies (Lifetime actually had a cute half-Jewish one) with a bunch on Lifetime, Hallmark (multiple channels), ION (ditto), Up Channel and at times others. I watched bits and pieces, but have had some problem finding one I like. Maybe, a bit of overload; you start to recognize certain actors as regulars. Plus, I know it finds even kissing a bit too much even if movies (a kiss is often the finale), but Hallmark went too far bending to protests and taking down ads for a wedding company because women kissing is "controversial." They need more diversity generally; other channels make more of an effort to have non-white female leads, as a for instance.

"Teddy" from Good Luck Charlie, or rather the actress, popped up so I checked her Wikipedia page. And, you do find some interesting tidbits -- turns out she is Dr. Christine Blasey Ford's niece and tweeted her support when that all came out. From what I can tell, BM's mom is Ford's sister. Also: "Mr. Sheffield" IRL (and his wife) is great politically on Twitter too.

SCOTUS Slow Walks or Justice Delayed is Justice Denied

Back in the day, in the days of the Burger Court, some things were too important to delay. The Pentagon Papers cases were handled within weeks, prior restraint deemed to important to wait. The Nixon tapes case was handled from grant to decision in less than two months (end of May to end of July; Nixon resigned in early August ... a few justices were fine with waiting to October).  These days a "rush job" means taking the re-argument of the Citizens United in September to handle it before the next election cycle started. Then again, the conservatives won there. 

Friday again was a news day with the House Judiciary vote for impeachment in the morning and at least one of the financial document cases were due for a decision. To remind, multiple committees in the House of Representatives subpoenaed financial records from Trump's accounting firm and two lenders while the Manhattan DA also sought the accounting records as part of a grand jury investigation.  So, we are dealing with third party business records here (including but not limited to his tax returns).

Trump claims "no legitimate purpose" for the first and that as you know cannot be investigated even in that way while in office.  The lower courts basically laughed at these extremist arguments that require him to be removed by impeachment even to investigate him for murder.  A Trump appointee big on executive power wanted House to have an official impeachment inquiry first and once it occurred noted that wasn't how the request was offered here.  The House noted delay could interfere with impeachment and if all it took was resubmitting it, the matter wasn't worth granting anyways.  (They should go ahead and do just that.)

But, the Supreme Court held up things and well it isn't really surprising they granted cert.  You had someone on Chris Hayes show last night be blase about the whole thing and suggest he very well might lose big.  After all, he lost before.  How exactly Mr. Person Who Should Know Better (it wasn't a clown; it was someone who should have known better).  ACA.  No, that wasn't him.  Census.  Yes, that was so blatant that one conservative justice (Roberts) was not willing to give him a pass, but even there, it was a limited loss.  Got anything else other than some denials of stays and such?  Another sane law professor type on Twitter also said it shouldn't be taken as a big deal.  Executive vs. Congress. 

The opinions below should be upheld in their entirety. They shouldn't have been taken at all.  But, at best, at best, one is being optimistic in saying that justice will have a partial win here.  It is completely proper for people not to trust the good faith of the Roberts Court (Kavanaugh Court) here.  Plus, as was pointed out on the thread (I'll avoid links here since he's probably representative) and by Josh Marshall (not always so passionate, but pissed off here), the delay is a major part of it.  The matter is clearly time sensitive. Impeachment counts were voted out of committee just that morning.  BTW, isn't Roberts sorta biased here given he would preside over an impeachment trial?  (I guess that came up in the Nixon tapes case too, but we have actual counts now, including obstruction of Congress, not there when that case was granted.)  And, the financial, intelligence and electoral security issues involved are of compelling immediate importance. 

And, instead of doing things let's say in January, the whole process can take six months or so.  Plus, it is likely not to be as if the judgment is "okay, release" either.  The aftermath is likely to be at least somewhat lingering.  It is like all these other lawsuits (one loses track, but a key subpoena DISTRICT court ruling was just handed down recently; multiple emoluments cases are slowly going thru the courts; the D.C. Court just asked for further briefing on standing or whatnot in the Mueller Report grand jury litigation etc.) just a long drawn out affair.  This is why "House Dems should just continue to investigate and fight things in the courts" doesn't wash for me unless you bluntly admit you are against impeachment.  It just runs out the clock unless you know he's reelected. People repeatedly sorta of ignore that. 

The subpoena of executive officials or even those who have left official service is an important part of legislative oversight. Over the years, the executive department has wrongly taken a strict view on the president's power to refuse to allow the people to testify. The issue was never ultimately decided by the Supreme Court and it would be nice if there was a clear word on it though on some level it is also a political dispute.  If each house has the will, there are ways to punish noncompliance.  And, I'm not really optimistic that this Court would decide the matter in the proper fashion.  But, these cases aren't that.  A local prosecutor is somewhat complicated but even there only financial records are being sought.  The absolute immunity sought is ridiculous.

The power of Congress to obtain the records is basic. It is part of the wider obstruction of Congress only somewhat covered in the second impeachment court that Trump is blocking it here. It is fucking outrageous. We have continual litigation to provide some, SOME, bite to the emoluments limits, but if Congress cannot even obtain records in part to address them, what is the point, really? But, this is not just about Trump specifically, but as as noted in a brief opposed to the stay a wider concern for the security of our financial institutions and the threat of foreign interference overall.  This includes interference in the 2016 elections and addressing the ongoing harm (see, e.g., Robert Mueller's testimony).  As the brief notes, citing the lower court ruling:

public’s interest in the Committee’s efforts relating to election integrity, national security, money laundering, and foreign blackmail were “of the highest order” and outweighed Applicants’ personal interest in “nondisclosure of financial documents concerning their businesses.”

Again, yes, it's reasonable (though far from too pessimistic to think otherwise) to think that the ultimate result here is some sort of win to sanity involving the extreme executive power claims raised here.  But, extremists have an upper hand on some level, since they ask for so much that even getting some (including more and more time) things is enough to worry.  This is a part of a wider whole too.  While Trump is obstructing Congress, electoral security legislation is being held up in the Senate.  One reckons at some point some sort of thing will be passed, but what it will entail is unclear.  And, some want the House to delay more, have more litigation, instead of impeaching. The fear it will be unpopular is dubious.  And, it has various positive effects too. 

Think big picture, hold firm .. impeach ... fight for our values. 

===

There is a sort of "also ran" quality to it, but other notable cases were granted along with the three, these more appropriately so.  One involved a dispute in Indian lands that split 4-4, a vehicle found to allow Gorsuch (Stolen Seat Guy) to take part.  Also, I'll just quote SCOTUSBlog:

In 2013, the Supreme Court ruled that the federal government cannot require recipients of funds to fight HIV and AIDS to have policies expressly opposing prostitution and sex trafficking. Today, in U.S. Agency for International Development v. Alliance for Open Society International, the Supreme Court agreed to decide whether the government can apply that policy to foreign affiliates of U.S.-based groups. Justice Elena Kagan is recused from the case.

Orders are due on Monday and I'll comment then. 

Articles of Impeachment Against Trump

ETA: After the Republicans wasted our time all day, Rep. Nadler after 11PM pushed the actual vote (much to the Republicans' ire -- no complaints about "midnight impeachments") to the morning.  A quick session made it official and it was by a partisan vote (Rep. Ted Lieu is out sick) voted out.   

Meanwhile, litigation continues, including for emoluments and this article to me hits a basic point, including this bit: "He called them phony emoluments clauses,” [Judge] King shouted. “Two clauses of the Constitution written in 1787.”  The Trump lawyer (who I engaged with online and he was an asshole, not just using the typical conservative talking points but in a snotty/sarcastic way) wanted to handwave this as an off the cuff statement.  No, it's not.  It's typical stuff for him. And, why he should be impeached.  And, if the conservative thinks this should not be in the courts, fine.  Impeachment is not. Limit him SOMEHOW.

One more thing. We now have Sen. McConnell openly saying on Fox News that he will follow the lead of the Administration during the trial.  This is not surprising but we cannot simply sigh about it.  He's breaking his oath, the Senate not just a subsidiary of the executive department.  Every f-ing Republican senator that goes along are as bad.  Enough with this shit!

There are the counts (I'd toss in something about the media) that he "deserves" and the two that the House Judiciary actually crafted.  The articles (a short nine pages) are abuse of power related to Ukraine (key criteria: involvement of candidate in U.S. election, holding up of funds authorized by Congress, personal over needs of nation and enlisting of foreign power against our own country) and obstruction of Congress (blanket obstruction on said investigation). The House Intelligence Committee provided fact witnesses to cover the first while the second was addressed in to me somewhat redundant (at least the second day, covering the first count mostly) House Judiciary portion (law professors).

[Word of the day: contumacy, which is a stubborn refusal to obey or comply with authority, especially a court order or summons. As to complaints some Democrats were for impeachment early -- damn Trump for being a criminal since the early 1970s -- there's this bit of Republican history regarding Hillary Clinton.  And, for this general aside, RIP to a great character actor, generally a blessing, who I first saw as "Clayton" on Benson.]

Reports are that people like Rep. Nadler (he and members of his committee were ahead of the curve here from the Mueller days) wanted an obstruction of justice count related to the Mueller investigation. The compromise, which is important to note, is that both cases reference previous actions consistent to these two. I would have specifically spelled that out (maybe as a whereas or in its own count). Three counts for one thing might lead some members a way to "compromise" more themselves by splitting the baby.  Still, that important final kicker provides a means to bring up the Mueller Report and anything so related. It also to me is a very important flag (as Rep. Schiff et. al. noted) on why it was necessary.  It is not a stand alone thing.  The whole thing is sort of synecdoche, a symbol of a wider whole.

The committee is now debating them (so to speak), starting last night with statements from each member. The general trend (including one who is a gun control activist whose son was murdered) was to provide personal accounts (some quite touching) about why they decided to run for public office and argue they weren't there to impeach Trump. Fine with the basic strategy more or less, but do think 2018 was about checking Trump. This was in response to the general Republican tendency to make it some sort of partisan witch hunt about not liking Trump when not whining (that is the general tone) about alleged process problems.

It's hard not to be depressed, cynical and angry about the overall process here.  First, Trump is so clearly unfit and guilty of a range of things that should fit the constitutional grounds for removal.  I think Democrats after the Mueller Report was dropped should have set up a sort of overall impeachment inquiry, delegating things to the relevant committees, with Judiciary serving as the overall clearinghouse.  As necessary, things could be accelerated, just as many (including Never Trump types like Orin Kerr) thought that the Ukraine Extortion Racket matter warranted.  Still think that would have been a good approach and more would have been accomplished if that was done in appropriate fashion.

So, the whole thing has a feel of not enough.  But, you take what you can get there (so, e.g., Democrats are challenging the Trump obstruction in the courts, even if people raise the fantasy of arresting people and putting them in some sort of fictional House jail). The ultimate step here, after Trump was caught again interfering with an election, is impeachment. And, it is felt to be time sensitive since an election is coming up, particularly a primary/caucus that starts in February.  So, waiting months or just as likely the rest of his term (one wants to rest with the word "single"), and just to continue to investigate to me is a dubious idea. The investigations should still continue and maybe another impeachment vote if something turns up so blatant to warrant it (though we should act now as if this is it).

Then, there is the reality that Trump will be acquitted in the trial. I find no need to repeatedly say this as a stated fact in part since it helps to make everyone cynical and take it ("one rather it not be ..") as a given and feel resigned about Trump blithely doing bad things without limitations. It also seems worthwhile to continue to say that you actually expect Republicans to have some shame here as you do not simply assume as a given that a child will just continue to be bad. You expect it, but you at least in a token fashion assume facially that the child will be good.

Still, yes, the likely result is an acquittal and the best we can hope for (and this shouldn't be taken for granted) that every Democrat (except maybe the guy from West Virginia) will the right way and maybe one or more Republicans (Romney?) might actually for to convict.  Even not voting there might be something.  Also, we hope the whole trial will not simply be a sham, maybe not even being a trial at all but simply a vote.  The reality here is that Mitch McConnell heads the Senate and Republicans are not showing any sign of a spine even to the degree of admitting Trump did anything wrong.  And, hopefully this will cause some pain.

Impeachment is necessary as an answer by the people's House, Trump so much of a repeat offender that even Democrats wary of impeachment feel a need to vote for it. One party is acting like it is okay and this is depressing as a matter of public well being.  But, you need to keep on fighting and support those who are fighting the good fight. Like some of the great members of the Judiciary and Intelligence committees that balance some of the clowns on the other side.  It's a long haul process. No Biden!

Execution Watch: Travis Runnels

This is the last scheduled execution this year (the federal ones held up by appeal) and on the same day the Supreme Court will deal with the proper mitigation factors to consider in a case prosecuted back in 1991.  It is unclear from the summary why basic principles (settled in the 1980s if not before) did not prevent this sort of thing. But, by now, it is not surprising that something fell between the cracks and now we will hear "why should be delay things even further?!" sort of arguments probably as usual.

The Order List on Monday included two statements by Justice Sotomayor regarding her concerns in two murder cases, one involving material given to the jury and another touching upon a scandal in Louisiana alleging mistreatment of habeas appeals. A suicide being involved juices up the details some for sure.  Otherwise, the orders were standard stuff and as usual the one grant (an interesting electoral law case) was made separately in an order at the end of last week. 

"It would be a travesty to take away his life when he is the epitome of what a changed man looks like," reads one of the 29 letters included in a clemency petition submitted to the Texas Board of Pardons and Paroles on Nov. 13 by Travis Runnels' attorneys. They ask that Runnels' execution, scheduled for Dec. 11, be halted and his sentence commuted to life in prison. The letters come from friends and family members scattered across the U.S. and Europe and describe him as "repentant," "reformed," "loving," and, especially, "changed."

No one would have used those words to describe Runnels on Jan. 29, 2003, when he was several years into a 70-year sentence for armed robbery. That morning, on the way to his shift at the boot factory in the Clements Unit near Amarillo, Run­nels told a fellow inmate he was going to kill his supervisor, Stanley Wiley. Arriving at the factory, Runnels took a knife used for trimming leather, slipped up behind Wiley, and slit his throat. As Wiley bled to death, an inmate asked Run­nels why he'd done it. "It could have been any offender or inmate, you know, as long as they was white," Runnels replied.

This is one of those "worse of the worst" scenarios: murder in prison. But, even here, over fifteen years later (if medium-range as far as these things go), there are concerns.  The forty-something murderer here is argued to have changed, which occurs even for murderers though even granting this redemption might only get you so much.  Perhaps, it serves justice and his own morality good to find some sort of peace before getting "just deserts" for his crimes.  Someone angry at his work detail or even the usual pettiness of employers (inside and outside at times occurring in seriously bad ways though it's unclear how much of that was here) murdering someone in prison, an inmate already with behavior problems there, is not an ideal suspect here.

Some cases are easier than others but even the easier ones are not simply some grave miscarriage of justice akin to someone innocent or blatantly unfit for execution.  I find the death penalty very problematic and am quite willing to say that it doesn't take me much to find a reason to determine it is not warranted in any given case.  This doesn't require me, especially as not an advocate for the defendant (it won't always even help), to sugarcoat. There are arguments both ways and by now they are readily made.

His possible redemption does suggest -- since we should lean toward life especially given the flawed nature of the state death penalty -- a reason for the state to not execute.  It provides incentives to others to have good behavior.  Runnels no longer is treated the same as what someone in there for a long robbery charge (70 years in his twenties?).  This is a major hook of his defense -- someone already found to have tainted execution determinations in the past is argued to have misstated the danger of detaining him.  It also appears that at some point some argument was made that his representation was flawed in part because proper mitigating factors (such as his background) was not raised during his sentencing.  At the very least, not doing so made the flawed expert that much more important.

(I can toss in here that while in prison he wrote to short books: Guidance On Navigating The Path To Love and How to Survive in Prison: A Guide for Prisoners, Their Families and Supporters, available on Amazon.)

I will likely still talk about executions and other death penalty matters, including the federal execution appeals, in 2020 but will stop with this more "deep dive" approach.  I don't know if there was any special lessons to be found here really and it has a depressing element.  But, I think I appreciate that I did it and the small sample made it more possible.  My general sentiment remains -- the strength of my opposition in any specific case is not really equal but have not found one really compelling case for which execution is really necessary.  This does not surprise given the few jurisdictions world-wide that actually has the death penalty.  Either way, Runnels was executed by Texas with no recorded dissent. And, thus, hopefully, the machinery of death closed for the holidays.

"Trump Targets Anti-Semitism and Israeli Boycotts on College Campuses" [NYT Headline]

President Trump plans to sign an executive order Wednesday that defines the Jewish people as a nationality for purposes of federal civil rights law, an effort to step up enforcement against episodes of anti-Semitism on college campuses, two administration officials said.

This news resulted in an uproar suggested by some of the comments at this blog (the NYT article that first announced it is linked there). The main post highlights the concern that it will interfere with free speech. As the NYT article (both articles are helpful to provide context, so I link both) notes:

The order will effectively interpret Judaism as a race or nationality, not just a religion, to prompt a federal law penalizing colleges and universities deemed to be shirking their responsibility to foster an open climate for minority students. In recent years, the Boycott, Divestment and Sanctions — or B.D.S. — movement against Israel has roiled some campuses, leaving some Jewish students feeling unwelcome or attacked.

Just to toss it out there, the Education Department already broadly interprets the rules here, so (as is usual with these executive orders from the Trump White House) the true reach, apart from symbolism, of the order is unclear.  Anyway, there really is antisemitism out there (or discrimination against Jews, for those who want to generally coyly say others are Semites), but at universities specifically, there is a lot more baggage involved here.

Note the usage of "some" as well. As the articles note, this splits Jews and others, thus various Democrats have support this.  As noted in a reply to my blog comment, this doesn't mean it is a good thing. Democrats support misguided things.  It just shows the complexity involved here. The fact an official statute to put this into law was rejected is also notable to some significant degree but does not settle things. Using "sex" in federal civil rights law to cover sexual orientation and gender identity can be correct even if new clearly phrased law covering them has yet passed.

We are right to be wary that Trump supports this, including given comments he made that are antisemitic, putting aside things like saying white supremacists are good people pretty clearly does that too.  To be clear, the idea here is that existing law does not cover religion, so there is a need to use "race" and "nationality" to do so. Cases like Shaare Tefila Congregation v. Cobb already have treated Jews as a "race" as applied to an old civil rights law.  In theory, the very concept isn't horrible. So, supporters can again show various people (including Obama) who have supported some form of the reported executive order.

But, various Jewish people (including those I respect on Twitter) being appalled is a serious red flag. The basic sentiment: I'm an American, damn you!  Treating Jews as others has historically been a serious problem and this is seen by Jews and others as a means to label them not American but "Jewish" as if that is akin to being Italian or something.  Like Muslims, Jews come from variety of nations and Jewish Americans are just that: Americans that are Jewish.  Though for some the reason might be benign, pursuant to existing law, the message sent is dangerous.

The complexity of things are helpful to understand but this doesn't mean they are benign and dismissive in simple blunt terms.  Both can be true and this seems to be such a case.

[Updated from here on.] The Washington Post, which followed the other's lead, cited two administration officials as noted in the opening.  A Slate article, first taking the first article at face value, had a mea culpa, putting the blame on one paper.  But, any mistake here -- and it is a mistake to assume before you see executive orders since as I said Trump's orders repeatedly are of marginal importance -- was shared. There is a general teachable moment here that outrages often are a bit more complex when you deal with the specific details. Also, raw data can be risky.

The order is linked in the article. It notes that "religion" is not specifically covered but in specific cases discrimination against Jews can also fit into the existing categories.  Concerns about free speech are to be weighed and the First Amendment not violated.  And, further study to be made and the findings reported.  Also, a nod to concern for antisemitism as much as anything else. In general, the whole thing sounds bland, like any number of his executive orders.  Whatever the paper was told.

I'm wary.  It very well might be that some "draft" had more and the negative feedback resulted in the more weak language. Maybe not. The general background, including legitimate protest (even if you think the boycotts etc. are bad on the merits) being targeted very well might still be something to be wary about given the messenger.  Who knows exactly what happened.

(The order is officially up and overselling it brings the usual reactions.  For instance, the text holds that antisemitism should be determined by "considering" various things including hatred of Jews and Jewish institutions, which literally can mean opposition to let's say their settlements. But, that by itself would not mean discrimination by "race" or "national origin" unless one selectively does so only when Jews are involved and do so in a way no only involving protected speech.

One can see how that can be misused but what does the order add to what was already there? Thus, the op-ed cited appears overblown especially given existing law. We can't have people both saying "nothing to see here" and now say that this is some big move on Trump's part. The spin is part of the point though.)

And More ... 

The White House put out a fact sheet on the executive order that is mostly a matter of bona fides regarding the Administration's fight of antisemitism and "confronting hate" (while not inflicting it, including petty potshots at the teenage girl chosen as the person of the year by Time).

But, it also specifically labels as "antisemitic" the Boycott, Divest, Sanctions (BDS) movement and calls out "18 Democrats" for supporting a resolution supporting it.  The resolution (in response to one voted on by over 300 members against BDS), co-sponsored in part by John Lewis, is one that generally supports the right to protest (citing various examples, including against Nazis, that is the "comparison" cited in the "fact" sheet).

The fact sheet is basically symbolic since it is basically an executive signing statement, if that, so should not have much legal effect as compared to the actual executive order.  But, it might have some informative effect, let's say, when people carry out the official order.  It also shows that people concerned that the order is really a backhanded slam on free speech and protest were not really too wrong even if the whole Judaism as a nationality thing was somehow confused.  The headline is on point.

SCOTUS Watch

The first non per curiam opinion of the Kavanaugh Term was as usual a technical matter, this time a 8-1 (Sotomayor added a thought, RBG had a partial dissent) Thomas deal involving a federal debt law. Also as usual, these cases have important implications. The professor there yesterday argued the opinion wrongly hurt consumers with an overly strict view statute of limitations in bringing a suit there. The SCOTUSBlog summary argued it was rather atypical. [On Wednesday, a unanimous opinion by Sotomayor on patent attorney fees was released.]

I'll say more about Sotomayor's statements tomorrow, but Monday's Order List also was generally uncontroversial too. Somewhat interesting footnote: the Court turned down an original jurisdiction request (state v. citizen of another state), without comment (the defendant argued bankruptcy rules made the request unnecessary) involving an opioid related lawsuit. The liberals probably also breathed a sigh of relief an ultrasound law (abortion) was not taken given the likely negative result (the dissent below was correct). As usual, various procedural moves would warrant a helpful FAQ code manual.

Meanwhile, I saw The L Word: Generation Q on Sunday. It was nice to see three (favorite is dirty mouth Alice, nice with an edge) of the old cast. Some of the new cast seem to have potential. Multiple bits of breast revealing sex seemed a tad gratuitous at some point. Will watch another episode. Agree with one review it does have a "people with money" favoritism.

NY/NJ Football Update

The Dolphins hit seven field goals but that missed one (bad snap) cost them. 22-21. Well, repeatedly not scoring in the red zone helped. Plus, being conservative at the end and then giving the Jets a gift long play to begin the final drive. So, you know, okay. But, the reversal on replay on something that "looked" like interference (the test is clear error) on fourth and long is annoying. Pissed off the Dolphins head coach (his yelling at the officials at the end of the game might get him a fine). And, really, the Jets head coach losing twice to his old team would have served him right. Pats losing was nice though. Bills played Ravens tough.

Bears beat Dallas on Thursday, leaving Eagles (again) a chance to be tied for first late. Eli was back to face them on Monday Night (the other guy has an issue but the noise is that the real issue is that Giants needed get out of their funk). Well, he had a good first half. Up 17-3. Okay. 17-17 for a final two minute drill! Um. Would you believe OT? No. Didn't get the ball. Eagles win 23-17. Tie breaker broke, Eli and Giants (match-up with Eagles) under .500 now.

Privacy: Two Examples

I have written much here on the constitutional right to privacy, which is still sneered at by some as a general concept, including how it was honored in various ways before Griswold v. Connecticut. One example would be when official bible reading in public schools was struck down as unconstitutional and repeated reference was made in multiple opinions on the "private" nature of religious beliefs and practices. It is one of various good opinions by Justice Clark, perhaps the only worthwhile Truman SC appointee and basically a conservative.

A matter of privacy rights came up when a Republican asked the impeachment witnesses last week if they voted for Trump. An election law professor noted there is no constitutional right to have a secret ballot though I would add that statutorily that is the case. Various cases back to the 19th Century honored some sort of "private" zone against congressional investigators. Watkins v. U.S. (1950s) broadly speaks of that. And, who you voted for would generally seem to be covered by its principles. They refused to answer that.

The "legitimate public purpose" test overall implies a protected private zone and both enumerated and unenumerated rights so secure. "Privacy rights" is a catchall.