Sunday, May 31, 2009

Uhh, California?
What the hell?
In a special election on May 19, voters rejected a batch of measures on increasing taxes, borrowing funds and reapportioning state money that were designed to close a multibillion-dollar budget gap. The cuts Mr. Schwarzenegger has proposed to make up the difference, if enacted by the Legislature, would turn California into a place that in some ways would be unrecognizable in modern America: poor children would have no health insurance, prisoners would be released by the thousands and state parks would be closed.

Saturday, May 30, 2009

She said one thing - I suppose in her whole adult life - that the crazies of the GOP have to hold on to. You've heard it by now, but here it is:
...a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male...
This statement alone - given in 2001 - has been used by Newt, Rush, et al to brand her as "racist", "un-American", "hateful", and the like.

I read the whole speech finally (so you don't have to, though I recommend it) aiming to demonstrate for myself how the statement has been misconstrued and doesn't really mean what it sounds like it means. You know, the famous out-of-context quote (as if there is another way to quote...). I have to say though that the facial meaning of the statement is not all that far off from what she seemed to have been trying to say, a point she made with remarkable thoughtfulness and admissions of uncertainty. This is an intelligent person, trying to think earnestly about the relationship between one's personal and cultural heritage, and the impact that may have on one's judgment.

As for the statement itself, one thing we can't do is brush this aside as a thoughtless sentence made off the cuff. We've all said stuff out loud we don't mean, don't believe, etc. Sotomayor's was a prestigious lecture - with presumably prepared remarks - given in honor of a famed, apparently, Latino judge at a conference on Latino/Latina "presence on the judiciary".

So what was her point, that being a Hispanic woman makes her smarter than white men? Obviously, no. Or at least, not quite. First things first, let's open the lens a tiny bit and quote the whole sentence:
Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
Two things: one ("I would hope"), it is a statement of aspiration, not a confident assertion of racial superiority. Second, and more importantly ("who hasn't lived that life"), her equation emphasizes differences in life experience, moreso than differences purely in ethnicity.

Elsewhere in the speech, it is evident that she believes this impact to be very much behind-the-scenes in the psyche, not that she believes judges should consult an internal WWHD (what would Hispanics do?) in reaching each decision.
Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

And beyond that, she clearly believes this "richness of experience" is only a positive when it is watched.
I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.
There is no neutral perspective. Given that, she seems to be saying, the justice we seek - and the justice America demands - is better, and more readily, served by a judge whose life is rich in experience, not because it makes them smarter, or more just in itself - no, in fact, experience most of all leads to "limitations" that may become "assumptions, presumptions and perspectives" that require "complete vigilance in checking". But what rich experience does is make the essential tasks of good judging more likely.
[T]o understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care.
This is a weighty and important discussion - the role of culture and personal experience in our enactments of judgment. It's a shame it's been reduced to such a cartoonish debate over whether she is, seriously, a "liberal David Duke" for uttering it. And I can only anticipate she will be distancing herself from these issues as much as possible - interpreting it in the most antiseptic way possible - in her confirmation hearing. But in actuality it was a bold speech in the questions she was clearly wrestling with. Mostly, though they are presented as questions and hopes. She seems confident only about one thing: our differences impact the way we view the law and apply it. She doesn't pretend to know how, to what extent, or entirely what should be done about it, or even what can be done about it, but it's a fact that she believes shouldn't be ignored. A more proportional diverse judiciary, she says, would give us large enough samples to find out how the law is changing as a result.

The controversial conclusion that frankly can be drawn is that she's at least open to the idea that being a white male brings with it inherent cultural limitations that are less easily overcome (presumably because of a common lack of interest in doing that work), and that left to our own devices white males would not have made critical advances in American justice for all. Yes, she says, Brown v Board of Education was decided by 9 white men, but it was argued by Thurgood Marshall and the NAACP. Yes, advances in women's rights were stamped by all white male supreme courts, but thanks should be given to attorneys like now-justice Ginsburg for showing the way and essentially demanding a moment of empathy.

Wouldn't it be great if the Senate could have a serious debate about such an issue as whether the law (or anything) can be read and applied with a perspective of objectivity? And whether or not, if the answer is no, we should just pretend we can? Are these acknowledgments better left to the academics and out of public view? This question of empathy is essential to justice, but how does a judge's ability on that score rank as compared to abilities in logic, and how are those 2 qualities related?

It could have led to a pretty interesting discussion if we had serious thinkers in charge who, I guess, didn't care about staying in charge. Until I read her speech though I wasn't aware just how directly that conversation was being invited by her selection. We'll see how willing the White House is to let her engage the topic when she faces the all-white-male Senate Judiciary committee later this summer. It will be interesting to see just how completely she disavows the remark.

Thursday, May 28, 2009

An Official Article 19 Prediction
I know lots of activists think this Supreme Court challenge of same-sex marriage bans is a bad idea. The cause is making decent progress going state to state in legislatures and state courts, the argument goes, and the last thing we need is the highest court in the land issuing a bad decision it will take years and years to undo. This is just the kind of cautious cynicism that would ordinarily speak directly to my jaded heart.

But not this time.

I would like to make a prediction. I think the Supreme Court will take this case, and I think they will rule that denying marriage status to same-sex couples violates their constitutional rights. Here are my reasons:

1. The argument is just too powerful to ignore. When it comes right down to it, and judges are face-to-face with an equal protection requirement, they have a hard time - California notwithstanding - explaining with a straight face why same-sex couples can be relegated to a different status legally than hetero couples. (See Iowa)

2. The import of having Boies and Ted Olson side by side on this can't be understated I think. Just a few years ago they went through this bitterly partisan battle and now they are coming together not for something trivial but for the idea that the Constitution guarantees equal rights to all citizens. In addition, the conservatives on the court are accustomed to agreeing with Olson. It will be difficult for the court to resist the moment.

3. It's inevitable and everyone knows it. They can be on the right side of history, or on the wrong side. They can be Plessy, or they can be Brown.

4. We only need 5 votes. Presumably, hopefully, the 4 liberal-minded Justices (Souter/Sotomayor, Breyer, Ginsburg, Stevens) are already there. Thomas and Scalia are already against. That leaves just one out of Alito, Roberts and Kennedy, just one of those three whose general conservative views don't extend to anti-gay sentiment. There are plenty of that kind of conservative out there (see Olson). Importantly, Kennedy already wrote the opinion to invalidate sodomy laws. He got 6 votes for that, and while we lost O'Connor that still leaves 5. I don't see why the same 5 wouldn't come together over this issue. But I could almost as easily see Roberts joining in.

5. Public opinion is already shifting on this issue. By the time the case could wind its way through the courts and be heard by the Supremes, we'll be that much farther along.

6. I know that the ACLU is a proud and essential organization with many important victories. I love what they stand for and almost always agree with them 100%. They say the time is not right for this challenge. Olson says the time is right. And he's won more than 75% of the cases he's taken to the Supreme Court. So maybe he knows a thing or two about where the court is.

Admitedly, there's not much middle ground here. On this timing issue, either I'm right (and Olson is), or the ACLU is right and he's made a big mistake. A loss *would* be a damaging setback. But recently I read "Ellory's Protest", the story of Ellory Schempp who as a teenager decided not to participate in Bible readings and prayer recitation at his Pennsylvania public school in the 1950s and was ostracized and punished by school officials for his refusal. He got a lawyer and after years of legal argument the Court ruled that such religious exercise by public school officials is unconstitutional.

We don't have mandatory Bible readings in schools today because of the decision brought on by a courageous plaintiff and a determined lawyer. And fighting the lawyer all the way? With protests that it was the wrong time and the wrong case? The ACLU.

They were understandably overly cautious then, and I hope and believe they are now too. One thing I know: if they wait until they're sure to win they will have waited too long. The justice of too many will have been denied, and besides, that's no way to make history. Anyway, we don't have Ellery Schempp and his no-name attorney. We have David Boies and Ted Freakin' Olson. That's plenty to kick ass with. Time to do it.

Wednesday, May 27, 2009

For the Kentucky Fans
Here we go...
The NCAA has charged the University of Memphis with committing major violations during the 2007-08 basketball season under former head coach John Calipari, according to a report by The Memphis Commercial Appeal on Wednesday.

The NCAA's notice of allegations stated that the school was guilty of "knowing fraudulence or misconduct" on an SAT exam by a player on the 2007-08 team.
Guess Who going to challenge California's same-sex marriage ban in the Supreme Court? An interesting combination of lawyers.
Question of the Day
Which of the following will Republican obstructionists allow to take their inevitable seats first, the highly qualified Sonia Sotomayor on the Supreme Court, or the popularly elected Al Franken in the US Senate? Which can they drag out the longest?

Friday, May 22, 2009

Aimless and Embittered
So at least we took down an organized cell of top-notch terrorists in New York, planning to blow up synagogues and shoot down planes and the like, right? A-list jihadis? Not so much.
[T]he overall portrait that's emerging is that of a group of struggling, disaffected petty criminals, who bonded at a Newburgh, NY mosque over having spent time in prison, before being taken in by a Pakistani immigrant looking to win leniency for a crime of his own.

There's little doubt the bumbling would-be bombers went far enough with the plot to demonstrate that they had the intention to commit terror, and for that they'll pay the price. But the whole tale comes off perhaps more as a sad glimpse into the lives of a loose group of aimless and obscurely embittered Americans than as a dire illustration of the threat of home-grown terrorism.

Thursday, May 21, 2009

Watch Obama's Gitmo Speech
I think he's a bit angry. Defensive, at least. See for yourself.

[UPDATE: After seeing Cheney's speech, the anger/annoyance in Obama's seems perfectly placed.

UPDATE2: Andrew Sullivan really liked the President's address.]

Wednesday, May 20, 2009

New Legislation Quiz
The credit card reform bill that just passed the Senate 90-5 contains which of the following provisions:
A) Requires credit card companies to give 45 days notice before any rate increase.
B) Prohibits credit card companies from raising finance rates on any debt that is not at least 60 days late. And requires any rate increase in that instance to be lowered again after 6 consecutive timely payments.
C) Allow guns to be carried in national parks
D) All of the above

The Answer is D. Yes, I'm afraid the US Senate couldn't defeat a gun the credit card bill. God bless America.

Tuesday, May 19, 2009

Through an elaborate media spectacle including a TV special and a book, scientists who worked for 2 years in secrecy are unveiling the complete fossil of a 47-million-year-old creature. "Ida" was a 10-month-old female... something that investigators claim will "change everything" about how we view human evolution. Unfortunately, they don't seem to have done much of a job explaining that to reporters:
About the size of a small cat, the animal has four legs and a long tail. It's not a direct ancestor of monkeys and humans, but it provides a good indication of what such an ancestor may have looked like, researchers said at a news conference.
This is very cool and all. But I do have a minor gripe. I'm not asking for sophisticated scientific analysis here or anything. In fact, if it were here, I probably wouldn't understand it. But, come on, throw us a little bit of a bone here (pardon the pun). If it's "not a direct ancestor", how does it help change the way we view human evolution, and how would it tell us "what such an ancestor may have looked like"? What about it so convinces the scientists who have worked on it that it's instructive at all about human ancestory? Would it be so hard to get just a mini-explanation that takes us a half-step beyond "Trust the scientists; they say this is huuuuge"? I don't doubt that there are excellent answers to these questions, just saying that's kind of the *news part*, right?

I had to rant about that to keep me from ranting about the idea that serious scientific discovery is now being treated like some kind of corporate product rollout.

The film, called The Link, will be shown on The History Channel Monday evening. You can see info on the book here.

Monday, May 18, 2009

One Way to $5 Million
Wonder if Woody Allen's next movie will be as profitable as his lawsuit against American Apparel.

Sunday, May 17, 2009

Townes van Zandt
With a new tribute album out, Steve Earle talks about his "tor-mentor".
To all but a handful of his closest friends Van Zandt was a remote, elusive figure, apt to disappear and turn up with equal unpredictability. As mentor to Mr. Earle he was hardly a steady, guiding hand, and he was much too stoic to dispense sage advice about songwriting or anything else. The premise of their relationship was something like, if I didn’t think you were good enough to do it yourself, you wouldn’t be here. He did, however, recommend that Mr. Earle always put the top back on the bottle so that the alcohol wouldn’t spill when it inevitably got kicked over and, when injecting drugs, to use clean needles every time.

He also instructed Mr. Earle to read “War and Peace,” though Van Zandt had not read the book himself, as Mr. Earle discovered to his surprise when he dutifully returned with questions about it. “I just thought you should,” Van Zandt idly told him.
Supreme Court Hopes
Stephen Pearlstein: Forget abortion. It's the anti-trust, stupid.

Saturday, May 16, 2009

Earth to Farge, Come In Farge
This seems pretty troubling. Hopefully somebody who reads this blog occasionally has enough breaks in between caring for her newborn(?) that she can shed some light on the real story here.

Tuesday, May 12, 2009

It's Grading Day
So no time to post. Here, read this good news instead.

Monday, May 11, 2009

It Wasn't a "Remark"!
It was a magazine article, no doubt carefully crafted, with plenty of opportunity to edit, re-think, take back, re-phrase, etc.

And while I'm at it, the people Feherty should apologize to are *not* the Speaker and the Senator, but to the military personnel that, in my opinion, were the most clearly insulted of all in his asinine piece.
Long-time readers (and I mean really long-time) may remember my fascination with cicadas. That is, fascination with the idea of 17-year cicadas anyway, not that I like hanging out in their presence. I was disturbed to learn that climate change may be altering the characteristic that has kept them going as a species: their peculiar life cycle.
Periodical cicadas best known for their 17-year-long life cycle are emerging four years early in several Atlantic states, including North Caroline and Maryland.
[A] paper to be published in the Proceedings of the Indiana Academy of Science suggests that mild winters affect trees that young cicadas feed upon, messing with the insects' timekeeping.

Thursday, May 07, 2009

This check is funny enough all by itself.

But funnier still when you read the story that apparently inspired someone to write the check. At Verizon Math, George Vaccaro details his efforts to get folks at Verizon to admit they quoted him the wrong price because they couldn't grasp the difference between $.002 and .002 cents, including an epic call to customer service. There is audio of the phone conversation as well, but I enjoyed just reading it.
Cell Phones
When did students lose the art of being inattentive the old-fashioned way: daydreaming? At least then you bear some resemblance to a person that's listening - vaguely looking ahead, etc. - with the added bonus that you can get away with it for longer.
On the heels of Arlen Specter's defection, Joe the Plumber is now leaving the Republican Party as well. Hilarious. It's nice to finally see the screwed up coalition that is the modern GOP finally unraveling. If they're not militia crazy, they lose Joe. If they are, they lose Specter (i.e., Pennsylvania). If they try to walk the middle, they lose both.

Wednesday, May 06, 2009

The Next Supreme Court Justice
First of all, when was the last time a President actually picked the consensus favorite as a Supreme Court nominee? It certainly hasn't happened since I started paying attention (circa Clarence Thomas). Still, I guess that won't stop the speculation business. And so far, the money is on Sonia Sotomayor, presumably because a) she's a woman - which the Court desperately needs, and b) she's Hispanic, which the Court has never had.

As for her actual qualifications, abilities,and judicial temperament, of course Republicans find her lacking - no big surprise. And among Democratic/liberal commentators, either Sotomayor is a horrible choice or an outstanding choice, depending on what you read. Figure it out for yourself.

Either way, and whoever Obama picks, we need more women there. 51% of the population and 11% of the Supreme Court is just pretty ridiculous. And Ginsburg is not exactly a model of health. Let's not forget too that when it came to a cabinet, Obama was not opposed to naming a well-known figure. Hell he wanted Sanjay Gupta to be his Surgeon General. So I think he just might surprise everybody. Oprah for Supreme Court? Judge Judy? Well, maybe not that for out, but may at least break with recent tradition. I guess we'll see.

Tuesday, May 05, 2009

Specter screwed up, pissed off his new Democratic colleagues, and now has lost seniority on committees. I wonder if Obama regrets offering such immediate and unqualified support. Still, I don't think his presidential embrace was ever about Specter's campaign for 2010. It's about trying to get things accomplished in the meantime. Obama's not trying to help him win re-election so much as he's trying to win Specter's support over the next year and a half in return for helping him win re-election. That's how I see it anyway.

To that end, if he's really not going to play ball on the issues - and it doesn't look like he is, then cutting down on his committee influence is the better option toward getting things done - from judge confirmations to health care legislation to energy overhaul.

Monday, May 04, 2009

Star Trek
"The best prequel ever." I don't read reviews before seeing the movie, but that would seem to be a glowing recommendation. Consider this your Media Monday post for the week.

Sunday, May 03, 2009

Weekend Deep Thought
I guess 50-1 are pretty good odds after all.

Friday, May 01, 2009

Swine Flu Question
We're supposed to cover our mouths when we cough, in case we have the illness, and we're supposed to not touch our mouths, so we don't get it. It seems impossible to follow both rules. Discuss.