March 31, 2012

At the Biomorph Café...


... it's so organic.

Bogus bully brouhaha.

"Despite the rare and tragic cases that rightly command our attention and outrage, the data show that things are, in fact, getting better for kids."

Esquire's blogger Charles P. Pierce purports to instruct me: "For the record, writers do not write their own headlines."

He writes: "Thanks for the link, but, seriously, I know there are better things to do in Wisconsin than to be this publicly dim."

Typical lefty response, to call your opponent stupid. But:

1. Hello? Pierce? You're writing a blog. Bloggers write their own post titles. You can call yourself a "writer" and call your post title a "headline," but I presume if I'm looking at a real blogger, you write your own post title.

A rally to repeal Wisconsin's "castle doctrine" law — citing Wisconsin version of the Trayvon Martin case.

The Wisconsin State Journal reports on a rally — with about 150 — that occurred on campus here in Madison last Tuesday.
[T]he March 3 killing of Bo Morrison, a 20-year-old from West Bend... came roughly a week after a neighborhood watch volunteer in Sanford, Fla., shot and killed Trayvon Martin, 17, in another disputed case of self-defense. Both young men were black and unarmed, which has ignited charges that the shootings were racially motivated.... At Tuesday’s event on Library Mall, organizer Dan Suarez of the International Socialist Organization called the two deaths “lynchings.”

“They were murdered because of the color of their skin,” Suarez declared. “We have been taught in the United States to be afraid of young black men.”

"Laws do not allow teachers to use children for partisan political advocacy, but that has not been the case, particularly in Wisconsin."

"Elementary school children have been forced to take part in anti-Scott Walker activities, even those young enough to not have any real grasp of the actual political issues facing the world. Big Labor has made the classroom much more political than it should be."

A billboard in Madison.

Obama wants to "make this country a little fairer."

With "the Buffet Rule": "If you make more than $1 million a year, you should pay at least the same percentage of your income in taxes as middle class families do... On the other hand, if you make under $250,000 a year – like 98 percent of American families do – your taxes shouldn’t go up."

Okay, well thanks for reminding me not to let my income spike up over $250,000. I want to remain in my safe cocoon of acceptably restricted income. I don't want to be one of those people who is making things feel unfair.

But the Buffet Rule would only raise $47 billion over a period of 10 years. $47 billion won't even cover 1 week of running the federal government. So it's nothing remotely approaching a serious effort at balancing the budget.

What is it then? Obama is telling us. Right there in the post title. Make this country a little fairer. The only reality is how everyone feels. Now, go to sleep children.

Rush Limbaugh — calling SCOTUSblog "a very, very left-wing blog" — explains "the left's" "full swing" "effort to intimidate" the Supreme Court.

That took me aback, because I'm so used to viewing SCOTUSblog — which I read all the time — as a very authoritative and relentlessly sober source of information about what's going on in the Supreme Court.
RUSH: There's a very, very left-wing blog called the SCOTUS blog, and the guy there is predicting 6-3 for the whole thing being found constitutional, 6-3. A lot of others have looked at his reasoning, "Yeah, you know what, I like that reasoning, it makes perfect sense to me. I think I'll sign on to that." If it happens, and if it happens the way the theory explains it, we don't have a court looking at the law anymore. We have a fully politicized third branch of government.... The chief justice, John Roberts, gets to decide who should write the opinion when he is in the majority. He assigns it. This theory holds that he'll write it himself....

Romanticizing suicide. [AND: Murder!]

In the NYT.

Expect more propaganda of this kind, my friends, because in the future, it is hoped, you will be your own death panel.

What makes Obama so confident?

"The part I struggle with is how you undo two years worth of implementation..."

"It would leave tremendous uncertainty about what is the direction we’re going in and that uncertainty would obviously affect the patients directly."

Consider the argument — featured in the NYT — that it's too late to strike down Obamacare, because so much work and planning and money has already been sunk into implementing it. And yet some experts say that the"important dialogue that has happened over the last three and a half years" will make it "easier for Congress or the states to revisit the issue."

IN THE COMMENTS: John Althouse Cohen said:
Isn't there also an argument that the case isn't ripe yet because no one has been harmed? So it must be either too early or too late for the law to be struck down.

Crackdown on blog commenting.

In China:
The moves are among the most dramatic censorship efforts undertaken by Beijing since the rise over the past two years of the popular microblogging services, known in China as weibo. They allow the fast dissemination of information, challenging the central government's traditional control of the media....

With the commenting services suspended, users may interact only by republishing others' posts and adding their own words. "Can I say a curse word? No? Then I've got nothing to say," quipped one user on Sina Weibo using the name Wiyu Chuzhi, apparently referencing a popular Chinese Internet joke about unhappiness over rising gasoline prices.
I wonder what all the catchphrases and running jokes and allusions are in China.

Can I say a curse word? No? Then I've got nothing to say.

Things I'm glad I didn't blog about.

"IRS not investigating Nikki Haley for tax fraud."

March 30, 2012

The Azalea Café...


... is good for what ails ya.

"EPA Backpedals on Fracking Contamination."

"The Environmental Protection Agency has dropped its claim that an energy company contaminated drinking water in Texas, the third time in recent months that the agency has backtracked on high-profile local allegations linking natural-gas drilling and water pollution."

Unpaid bloggers lose their lawsuit against Huffington Post.

"The principles of equity and good conscience do not justify giving the plaintiffs a piece of the purchase price when they never expected to be paid, repeatedly agreed to the same bargain, and went into the arrangement with eyes wide open."
"This is the electronic equivalent of someone writing a letter to the editor," John Coffee, a professor at Columbia Law School, said in an interview. "You are rewarded by publication, not by payment."
You want to get paid for your writing? Bargain for it. And quit whining. No one wants to read things written by whiners, so you're only digging yourselves a deeper hole.

Olbermann falls further.

Fired by Al Gore's Current TV, less than a year after getting fired by MSNBC. Ouch.
We created Current to give voice to those Americans who refuse to rely on corporate-controlled media and are seeking an authentic progressive outlet. We are more committed to those goals today than ever before. Current was also founded on the values of respect, openness, collegiality, and loyalty to our viewers. Unfortunately these values are no longer reflected in our relationship with Keith Olbermann and we have ended it.
Yeouch. Olbermann reacts:
... [Al] Gore and [Joel] Hyatt, instead of abiding by their promises and obligations and investing in a quality news program, finally thought it was more economical to try to get out of my contract.

It goes almost without saying that the claims against me implied in Current's statement are untrue and will be proved so in the legal actions I will be filing against them presently....

In due course, the truth of the ethics of Mr. Gore and Mr. Hyatt will come out....
Oh! The ethics of Al Gore, exposed in a lawsuit brought by Keith Olbermann. I can almost hear the Gore-haters of the world salivating.

Release the chakras!

The recall election against Gov. Scott Walker is scheduled, and Milwaukee Mayor Tom Barrett announces that he will run.

1. The Government Accountability Board certifies the election and schedules it for June 5. Get ready!

2. Tom Barrett, whom Walker defeated in the regular election in October 2010, has — at long last — said he's running.
Barrett, 58,the fourth Democrat to declare his candidacy in the recall election. They will face off in a May 8 primary... Former Dane County Executive Kathleen Falk was the first Democratic candidate to jump into the race, and she has already locked up most of the union support. Wisconsin for Falk - a union front group - has already spent more than $1.6 million on air time to run TV commercials backing her campaign....
This should be interesting, with the 2 Democrats attacking each other and using up their funds for the next 4+ weeks, then pivoting to try to defeat Walker one month later. Walker obviously has been fighting to keep his job and will continue to fight while Barrett and Falk (and Vinehout and La Follette) concentrate on the primary.

UPDATE AT 5:05: Friends of Scott Walker comes out immediately with an anti-Tom Barrett ad:

A federal judge strikes down parts of Wisconsin budget repair law.

The Milwaukee Journal Sentinel reports:
The court side with state officials in upholding limitations on what can be bargained, but found the two other provisions violated the union members' First Amendment rights, considering that the same rules did not apply to unions for public safety workers such as police and firefighters.

"So long as the State of Wisconsin continues to afford ordinary certification and dues deductions to mandatory public safety unions with sweeping bargaining rights, there is no rational basis to deny those rights to voluntary general unions with severely restricted bargaining rights," wrote U.S. District Judge William M. Conley....

The state's justification for allowing greater bargaining by public safety workers - avoidance of strikes - does not stand up as a rational basis for requiring other public worker unions to annually recertify by absolute majority, and denying them automatic dues deductions, the court said....
ADDED: Here's a PDF of the opinion. First, the court upholds the collective bargaining restrictions:

Retweet the Right Thing.

Next time Spike "Do The Right Thing" Lee does racial politics on Twitter, perhaps he'll be a little more more circumspect. He was certainly clever to settle quickly with that elderly couple who fell victim to his impetuousness:
Elaine and David McClain are in their 70s and say they have a son named William George Zimmerman, who lived in their Sanford area home in the mid-1990s. They say he is no relation to 28-year-old George Zimmerman, who killed 17-year-old Trayvon Martin on Feb. 26....

“At this point in time, we have come to an agreement with Spike Lee and his attorneys, and at this point, the matter is fully resolved,” Morgan said. “Spike has agreed to compensate the McClains for their loss and for the disruption into their lives. He’s taken full responsibility.”....

“He was really kind,” Elaine McClain said. “And when he called us, you could just tell he really felt bad about it. And it was just a slip, and I just know that he really, really has been concerned.”
Yeah, it was just a slip. He intended to send the lynch mob to the other George Zimmerman's house. Did he apologize for that? And what did the McClain's get out of Lee other than an apology? Did he buy them a new house at a new address? What's the market value of their old house, now that the address is out there in digital-vigilante-o-sphere?

Meanwhile, the street address of the parents of the real George Zimmerman is out there. Roseanne Barr retweeted it, then took it down — because she was criticized. She said that that at first she thought it “was good to let ppl know that no one can hide anymore.” Since she needs to be popular and she got some pushback, she stepped back and tweeted as if she'd reached a higher level of morality: “But vigilante-ism is what killed Trayvon. I don’t support that.” But she kept her moral understanding fuzzy: “If Zimmerman isn’t arrested I’ll rt his address again... maybe go 2 his house myself.”

Adam Liptak — at the NYT — says the SG tried to appeal to Justice Kennedy's idea of liberty.

Liptak refers to the way the Solicitor General, Donald B. Verrilli Jr., ended his argument by connecting the health care law to liberty:
“There will be millions of people with chronic conditions like diabetes and heart disease... and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”
"Liberty" is a high abstraction. What is it about the liberty of compulsion to buy an expensive health insurance policy that Justice Kennedy is supposed to find appealing? Just because someone loves liberty doesn't mean they're going to love everything you slap a "liberty" label on!

Liptak points to the oral argument transcript where Justice Kennedy asked the SG to "identify for us some limits on the commerce clause?"
Those questions fit neatly within one strain of Justice Kennedy’s understanding of liberty, one he discussed at length last year in an opinion for a unanimous court.

Limiting federal power, he wrote, “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”
Obviously, that's exactly not the kind of liberty the SG was talking about.
But there is another strain to Justice Kennedy’s conception of liberty, one that may help Mr. Verrilli. “When you think about liberty relative to Kennedy,” Professor [Helen J.] Knowles said, “the element most important to him will be the idea of individual responsibility. He thinks the government has the power to ensure that the responsible exercise of liberty be done in an educated manner."...

As Ilya Shapiro wrote in The Harvard Journal of Law and Public Policy in 2010, “Justice Kennedy’s jurisprudence is a constant struggle to find the right balance between liberty and responsibility.”...

In 1992, joining with Justices Sandra Day O’Connor and David H. Souter to uphold the core of the constitutional right to abortion identified in Roe v. Wade, Justice Kennedy wrote by way of explanation that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."
Interesting and important quotes, but I don't see how they get us anywhere near connecting Kennedy's ideas about liberty to the policy of compelling the individual to take responsibility by requiring him to do one particular thing that the government has decided is the one thing that should be done.

As long as Liptak brought up abortion. Imagine if the government claimed it was furthering liberty by requiring every pregnant woman to go forward and bear her child. Here's freedom for you: Take responsibility by doing what the majority has decided is responsible.

Or reverse that: Imagine the government deciding who was ready to bear a child and imposing a penalty on those who failed to have abortions... and imagine the government proclaiming that it was all in the name of liberty.

To say that no choice is choice. That compulsion is liberty. Freedom is slavery.

What's with calling politicians — Romney... Obama... — "creepy"?

Scanning the news via iPhone while still lying in bed this morning — that's my habit, absurdly — I noticed someone was asserting that Romney is "creepy." I can't remember where I saw that, but no I'm seeing that Peggy Noonan is calling Obama "creepy." For what it's worth, by the dubious measure of Google hits, Obama (16,300,000) is much creepier than Romney (1,600,000).

This is the teaser from Drudge: "NOONAN: OBAMA BECOMING 'CREEPY'..." But what is she really talking about? She begins:
Something's happening to President Obama's relationship with those who are inclined not to like his policies. They are now inclined not to like him. His supporters would say, "Nothing new there," but actually I think there is. I'm referring to the broad, stable, nonradical, non-birther right. Among them the level of dislike for the president has ratcheted up sharply the past few months....
She presents the evidence that we're letting go of this notion that we really, really like him. He's so likeable. This is conventional wisdom that supposedly keeps Republicans fettered. They're not supposed to criticize him personally. But there were always Obama opponents who wanted the restrained Obama opponents to break loose and take the chance of triggering the impulse to protect the charismatic politician that we've like so much, as a person. Does Peggy do the trick here?

Not for me. I see Obama as somewhat ineffectual, and obviously he's failed to transform the American culture and bring us a new era of peace and unification that some of those of us who like him really hoped we could have.

I'd rather look to why we're supposed to find Romney unlikeable. I find Romney very likeable. It seems to be this meme: Romney is somehow devoid of human feeling. Where does that come from and why do conservatives submit to that defeating characterization? How about reframing the template? All those things about Romney that are supposed to be off-putting? Tell me why they are actually charming and loveable! I'm sick of these sadsack Republicans, always acting like they're the unpopular kids. That's not making you likeable. It's making you toxic. No one's going to want to sit at your lunch table. Now, comb your hair, stand up straight, put on some lipstick, and look in that mirror and say: I am beautiful.

"J-Lo, can you scoot over a little bit?"

Telling Jennifer Lopez to move her sublime ass?

There really is only room for one female on the "American Idol" panel. Whenever they've squeezed in a second, they've wrecked the dynamic. Sorry to deal in stereotypes here, but the way the judges' panel has been structured since the first season, there's a woman, in the middle, performing a stereotypical female role. Paula Abdul pioneered this role, empathizing with everyone, speaking from the heart, and squealing special love for the boys. Paula got ousted, and other females had there time in the middle seat, but now they've got Jennifer, and Jennifer has far outstripped Paula. And I love Paula, but Jennifer is the queen.

She was low-key in her response to Nicki Minaj: "I don't know if there's enough room for both of us." A demure reference to her most famous body part, and a fully justified expression of intention to keep it firmly planted in the center seat.

"I feel like throwing up when I hear it. No, I shouldn't say that. No, actually, I do feel like throwing up."

"I wish I could say, 'Oh listen, everybody! It's the Celine Dion song!' But I don't. I just have to sit there, you know, kind of straight-faced with a massive internal eye roll."

Kate Winslet experiences seasickness on the Titanic... song.

"Our passports may say that we are French, but we don’t feel French because we are never accepted here."

"No one can excuse what he did, but he is a product of French society, of the feeling that he had no hope, and nothing to lose."

"Trayvon Martin was not innocent. He was guilty of being black in presumably restricted public space."

Writes Melissa Harris-Perry in The Nation:
For decades, Jim Crow laws made this crime statutory. They codified the spaces into which black bodies could not pass without encountering legal punishment. They made public blackness a punishable offense. The 1964 Civil Rights Act removed the legal barriers but not the social sanctions and potentially violent consequences of this “crime.” George Zimmerman’s slaying of Trayvon Martin — and the subsequent campaign to smear Martin — is the latest and most jarring reminder that it is often impossible for a black body to be innocent.
This is the left-wing presentation of the case. All I want to talk about here is the photograph The Nation has used to illustrate this item. We see a 3-year-old child, a boy who happens to be black. He's been dressed in a black hoodie — the item of clothing Martin was wearing when he died — and given a sign to hold. The sign has a picture of a bag of Skittles — the candy the 17-year-old Martin had in his possession when he was shot — and the words Justice 4 Trayvon Martin. The child's eyes are downcast. He looks terribly sad.

But he can't possibly be sad about racism in American, injustice, or the death of Trayvon Martin. He's 3 years old!

He's probably sad because he's been dragged to a protest and made to stand around, holding a sign, at knee level to a lot of adults who are angry about something he can't understand. Who knows the ways in which a 3-year-old absorbs the emotions of the adults who surround him? Does he even know he's black, and if he does, does that have meaning for him? What meaning is he learning — that he's guilty of being black?

Paul Ryan endorses Romney.

The Wisconsin congressman embraces the frontrunner on the eve of the Wisconsin primary.

This, just days after the endorsement from Congress's other biggest GOP star: Marco Rubio.

"You return force with force when somebody assaults you. George was out of breath, he was barely conscious."

"There would have been George dead if he had not acted decisively and instantaneously in that moment when he was being disarmed."

Zimmerman's brother speaks:

Quoted in the linked article, at, is Marcia Clark, the prosecutor who failed to convince a jury that O.J. Simpson was guilty. She's talking about the photographs of George Zimmerman, which people on the web are saying prove he didn't have a broken nose.

Suddenly, everyone's a doctor, the kind of doctor that does diagnoses through blurry web videos. Flashback: Remember when Senator Bill Frist — a Harvard-trained doctorquestioned the diagnosis of Terri Schiavo "based on a review of the video footage which I spent an hour or so looking at last night in my office"? He got slammed for that.

But here's Marcia Clark: "Anyone who's seen a broken nose is aware of the fact that the blood spurts. That leads to a lot of bleeding. You would have expected to see blood on the front of George Zimmerman's shirt collar. Blood — you know, in many more places."

Anyone knows. Of course, a broken nose is a veritable geyser. So says the expert on blood evidence. I know she's seen a lot of blood. Blood does gush from slashed throats. But a broken nose? I'm going to Google that. Here's a list of symptoms, according the Mayo Clinic website (boldface added):
Signs and symptoms of a broken nose may appear immediately or may take up to three days to develop. Signs and symptoms may include:

Pain or tenderness, especially when touching your nose
Swelling of your nose and surrounding areas
Bleeding from your nose
Bruising around your nose or eyes
Crooked or misshapen nose
Difficulty breathing through your nose
Discharge of mucus from your nose (rhinorrhea)
Feeling that one or both of your nasal passages are blocked
I am trying to fathom the depths of mendacity around the Trayvon Martin case. Why aren't people afraid of uttering statements that are so easily devastated?

For a prosecutor to make extreme and overconfident statements about evidence, when the statements are not even remotely accurate and the inaccuracy is detected through 5 seconds of Googling? I understand why people want to lie and deceive, but to throw away your credibility so carelessly?

March 29, 2012

At the Hyacinth Café...

... it's still quite early.

"Obama Shifts View of Executive Power."

"When he ran for president, Barack Obama promised to roll back President George W. Bush's use of executive power, a defining point of the Bush presidency. The pledge was part of a broader pitch about Mr. Obama's governing style, which he said would focus on solving problems in a pragmatic, cooperative way. The allure of executive power, it turns out, is hard to resist...."

Huge crowd at the Ron Paul rally this evening.

We were in the "backstage" area. Note how many people are on the other side, including on the roof.  And way up over there:

I have some video too. I need to edit some high spots. The crowd was very responsive, even chanting "end the fed." No heckling. No indication that there were any fans of big government anywhere in the vicinity. Abolish the income tax... cheers! More than once, they booed Woodrow Wilson.

ADDED: Here's the Milwaukee Journal Sentinel article about the rally:
Paul told the thousands gathered at a "town hall meeting" at the Memorial Union Terrace that he is often asked why young people are interested in him.

"One reason - they're getting a bad deal," he said, citing the debt they are inheriting from past spending decisions.

Sarah Palin weighs in on the Scott Walker recall election.

At her Facebook page:
I look at the far Left’s assault on Wisconsin and I say, “Are you kidding?” As an outsider (albeit an admitted Green Bay fan with family roots in Chippewa Falls), I join millions of Americans watching the political shenanigans in Wisconsin. I am torn between just chuckling at these radical liberal yahoos trying to oust an intelligent administration that is fulfilling its promises, or raising a fist in disgust at people sitting on their thumbs while Governor Walker and Lt. Governor Kleefisch get thrown to the wolves....

Ron Paul speaks at the UW tonight, on the Union Terrace, at 7.

It looks to be a huge event. It will be interesting to see how the people of Madison react to the iconic libertarian.

"Tony Scalia's Retirement Has Started Early."

Says Charles P. Pierce on the Esquire website.

Calling a man of Italian ancestry "Tony" when that isn't his nickname? Isn't that on the level of calling a Latino "Jose" or a black man "Leroy" (or some such stereotypical name)?

Of course, quite aside from that, the blog post is bilge:
I think Justice Antonin Scalia isn't even really trying any more. It's been clear for some time now that he's short-timing his job on the Supreme Court. The job bores him....  he's now bringing Not Giving A Fuck to an almost operatic level.
Opera... see? That's like talking about a black person and throwing in watermelon.
His "originalism" was always a shuck, even if it was consistent, which it rarely was, and even if it was principled, which it never was.... But at least, for a while, he actually tried to act like a judge in a democratic republic, and not the lost Medici pope. 
Pope? More anti-Italian (and anti-Catholic) stereotyping crap, which Pierce probably thinks is just fine, indeed hilarious, because it's against a conservative.
It is plain now that Scalia simply doesn't like the Affordable Care Act on its face.... He doesn't think that the people who would benefit from the law deserve to have a law that benefits them. On Tuesday, he pursued the absurd "broccoli" analogy... And today, apparently, he ran through every twist and turn in the act's baroque political history in an attempt to discredit the law politically, rather than as a challenge to its constitutionality. (What in hell does the "Cornhusker Kickback" — yet another term of art that the Justice borrowed from the AM radio dial — have to do with the severability argument? Is Scalia seriously making the case that a banal political compromise within the negotiations from which bill eventually is produced can affect its ultimate constitutionality? Good luck ever getting anything passed if that's the standard.)
Pierce just doesn't understand what the Cornhusker Kickback has to do with the severability argument. He smears Scalia, but he doesn't do the basic work of fathoming the argument. He denounces without earning the right to denounce, and instead of saying anything of any value about law he flips out over into the ethnic insults.

Here's the portion of the severability argument — transcript PDF — where Scalia talks about the Cornhusker Kickback:

"An’ for every hung-up person in the whole wide universe... we gazed upon the chimes of freedom flashing..."

One more Bob Dylan quote... one more post about freedom...

... because I just asked Meade what his favorite Bob Dylan song was, and he hadn't read my theme-of-the-day freedom posts yet, but he said "Chimes of Freedom".

I could expatiate about the connection to freedom, but I'll just say it simply: It's Meade's birthday. We're not big on special occasions. We love normal, everyday life. It's hard to stop and say something distinctive about a birthday, when every day is a beautiful gift.
Striking for the gentle, striking for the kind
Striking for the guardians and protectors of the mind

Goodbye to Adrienne Rich and Earl Scruggs.

She was 82. He was 88. Famous people die in 3s — it has been noted — but who could complete the triad that begins with Rich and Scruggs?

He was the ultimate banjo player...
... best known for performing alongside the guitar-playing Lester Flatt with the Foggy Mountain Boys. Among their signature songs were “Foggy Mountain Breakdown,” which was used as the getaway music in the 1967 film “Bonnie and Clyde,” and “The Ballad of Jed Clampett,” the theme song of the 1960s television sitcom “The Beverly Hillbillies.”
For TV and movie watchers of the 60s, this was the sound of freedom — Jed moves away from there, there being wherever it was that the poor mountaineer "lived," and Bonnie, she follows Clyde, who said to her:
You're different.... You know, you're like me. You want different things. You got somethin' better than bein' a waitress. You and me travelin' together, we could cut a path clean across this state and Kansas and Missouri and Oklahoma and everybody'd know about it. You listen to me, Miss Bonnie Parker. You listen to me.
And later, she says: "You know what, when we started out, I thought we was really goin' somewhere. This is it. We're just goin', huh?"

That's what poured into our ears back in the 60s, lubricated by banjo music. Adrienne Rich got her cultural foothold in the 60s:
Once mastered, poetry’s formalist rigors gave Ms. Rich something to rebel against, and by her third collection, “Snapshots of a Daughter-in-Law,” published by Harper & Row, she had pretty well exploded them. That volume appeared in 1963, a watershed moment in women’s letters: “The Feminine Mystique” was also published that year.
In the collection’s title poem, Ms. Rich chronicles the pulverizing onus of traditional married life.....
I'm going to pulverize your onus, baby. The funny thing though: Rich was a lesbian. And yet she married a man:
In 1953 Ms. Rich had married a Harvard economist, Alfred Haskell Conrad, and by the time she was 30 she was the mother of three small boys....

By 1970, partly because she had begun, inwardly, to acknowledge her erotic love of women, Ms. Rich and her husband had grown estranged. That autumn, he died of a gunshot wound to the head; the death was ruled a suicide. To the end of her life, Ms. Rich rarely spoke of it.
I think I once bought one of her books. It seemed like something in the spirit of the times that one should partake of, but I never read it. I find most poetry annoying, and hers was no exception. I did read that essay "Compulsory Heterosexuality and Lesbian Existence," which all the radical feminists were taking terribly seriously circa 1990. It was the assigned text in one of the law school radical feminist reading groups I participated back in those days. There were all these earnest, intelligent, heterosexual women who studied that text and gabbed about it until they genuinely got their minds around the amazing realization that they should not be heterosexual. Not that they should be having sex with women, but in some other, conceptual way. I'd tell you what the concept was but my mind is not longer around that particular realization, and I don't have the time right now to redo all that hard intellectual work that I did amongst the feminists in 1990/1991.

I'm sure it was all about freedom, but I'm free of that now. Since I'm quoting Bob Dylan today:
A self-ordained professor’s tongue
Too serious to fool
Spouted out that liberty
Is just equality in school
“Equality,” I spoke the word
As if a wedding vow
Ah, but I was so much older then
I’m younger than that now

Robert Zimmerman interview.

"All of our family, everyone who knows George, knows absolutely that is George screaming. There's no doubt in anyone's mind."

There's a human rights complaint against Earls Albino Rhino beer.

"Ikponwosa (I.K.) Ero of Vancouver has alleged to the B.C. Human Rights Tribunal that the name singles out people like her who suffer from albinism, the absence of pigment from the skin, hair and eyes."
It's a medical condition, not a taste treat, Ero argues.

"You go into a restaurant and someone says, 'Can I get a palsy? Give me a palsy,'" she said. "And what it stands for is a cerebral palsy cocktail. I don't think that would fly well at all with anybody with cerebral palsy, or their families, who have to live with the condition.

"So how does it work, in [the case of albinism] that you can market food with a medical condition?"
And how does it work, that you go from believing a product is poorly named to believing human rights are violated
Ero, who was born in Nigeria, said in her complaint that in Africa ablinos [sic] are often targeted for ritualistic murder.... The threat of persecution was one of the reasons she and her family fled to Canada when she was a teenager.
You came to Canada for liberty and you became an agent of repression. But that's your idea of liberty, controlling others.

That reminds me, at the Supreme Court oral argument yesterday, the Solicitor General ended his woeful week by talking about freedom: With all the new compulsions and coercions of Obamacare, "millions of people with chronic conditions like diabetes and heart disease... will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty."

In the words of Bob Zimmerman:
Ah, my friends from the prison, they ask unto me
“How good, how good does it feel to be free?”
And I answer them most mysteriously
“Are birds free from the chains of the skyway?”
In the words of the U.S. Supreme Court Justice Kennedy — who will decide the Obamacare case singlehandedly, as the pundits tell it, but who wrote this along with Justices O'Connor and Souter:
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.
Raise a glass of Earls Albino Rhino to liberty!

March 28, 2012

At the Tulip Café...

... open wide.

Time-shifted live-blogging of this morning's Obamacare oral argument in the U.S. Supreme Court.

I've finally got time to curl up with a nice MP3 and transcript. I'm going to treat this like a live-blog, with frequent updates until I get to the end.

UPDATE 1: Paul Clement will attack the expansion of Medicaid. He's talking about whether it's "coercive," because if it is, it won't fit the Spending Power. Justice Kagan wants to know why a "big gift from the Federal Government" is coercion. "The Federal Government is here saying, we are giving you a boatload of money." Page 3. Just a big old boatload of money is coercive, Clement says confidently. But the actual bill has a "very big condition." Kagan interrupts, trying to make her point that a big boatload of money is not coercive. What if someone offered you a job and would pay you $10 million a year. Of course, you say yes, but you're not coerced are you? Clement lays down one of the cleverest teasers I have ever heard: "Well, I guess I would want to know where the money came from."

"Wow. Wow." says Kagan. Has a Supreme Court ever said "Wow. Wow" before? She can't believe you'd do anything other than snap up that money. "I'm offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?"

Clement springs his trap: "Sure, if I told you, actually, it came from my own bank account."

How bad was the SG in yesterday's oral argument?

Well, he certainly started off bad. I don't think once he got going, he was as much of "train wreck" as Jeffrey Toobin seemed to think, but something was really off. Here I am, knowing what Toobin had said, listening yesterday, for the first time, to the recording of Solicitor General Donald Verrilli's argument.

Rasmussen does a poll on whether Zimmerman is guilty of murdering Trayvon Martin.

Is a disturbing notion of due process taking over in America? Forget trials and juries and all that stuff? Let's do a poll!
Despite round-the-clock media coverage of the Trayvon Martin shooting in Florida, most Americans haven’t come to a conclusion yet whether it’s a case of murder or self-defense.
Come to a conclusion yet! The American people should be celebrated for reserving judgment where they haven't heard all the evidence... and for knowing better than to jump to media cues.

A paywall comes tumbling down.

This decision is in line with our desire to enable new readers to discover and share the best of what TNR’s writers produce each day....
Yes, exactly, you want to be read... as much as possible, by as many people as possible. It's all so obvious.

When will the NYT cave?

Reports from Day 3 of the Obamacare oral argument, now in progress.

The argument today is about severability — that is, whether, if a portion of the Act is struck down, some or all of the rest of the Act must fall along with it. Kevin Russell reports, following Paul Clement's argument (boldface added):
The Court was skeptical that the whole act should fall if the individual mandate is invalid. But there wasn’t any clear indication of how far the Court would go. It seemed like there wasn’t much question, except from Justice Sotomayor that the community rating and mandatory issue provisions would fail, that is the government’s position. The fact that the liberals were very engaged, particularly  Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.
And from Amy Howe:
Almost all of the Justices asked Clement questions, and many were skeptical of his argument that if the mandate and the provisions link to it go, all that would be left is a hollow shell.

But Ed Kneedler also faced skeptical questions, especially from the more conservative Justices, who asked him how the Court should figure out what other provisions must go. Are we supposed to go through the whole 2700 pages, they asked? (Justice Scalia suggested that this would violate the Eighth Amendment.)
Thus, it sounds like the parts of the Act that would destroy the private insurance companies will go down along with the individual mandate — that these provisions of the Act are not severable (which seems obvious to me). The harder question was whether the entire Act will fall.

Are we supposed to go through the whole 2700 pages? Ha ha. Why should they? The members of Congress didn't. Obama didn't. (Signing the bill, he said: "... you know the feeling of signing your name to pages of barely understandable fine print").

And who can ever forget: "We have to pass the bill so you can find out what is in it"? If the Court drags the whole thing down, no one will ever know what the hell was in it. And I mean no one. Absolutely no one on the face of the earth knows the entire text, and no one will ever know.

Wisconsin Voter ID case goes straight to the Wisconsin Supreme Court.

The Wisconsin State Journal reports:
Appeals courts sent two lawsuits challenging Wisconsin's blocked new voter ID law directly to the state Supreme Court on Wednesday, determining it was imperative to resolve the cases quickly given the slate of important upcoming elections, including the state's presidential primaries next week.

If the Supreme Court agrees to take the cases, it could reinstate the state's new requirement that voters show photo identification at the polls just days before Tuesday's election. However, attorneys challenging the law said it is unlikely a decision would come that quickly.
A decision before next Tuesday's primaries? Assuming a majority of the court will uphold the new law, I find it hard to believe the minority won't at least have some power to slow the case down. But, on the other hand, you have a trial court enjoining an important new state law, interfering with an impending election, why should that be allowed to happen, if the law is, in fact, valid? 

When it comes to the Obamacare case, you just can't lose.

Let me state the obvious and not belabor it: Whoever loses will easily and powerfully leverage that loss in the political arena.

If Obama loses, look what he will be able to say to the American voters as they contemplate his reelection:
1. I brought you a wonderful solution to a terrible problem. (What he won't say: It would have been a disaster, and fortunately, you will now not need to experience it and see that it was not wonderful, but terrible.)

2. My opponent has been arguing for months and months that you need to elect him to get Obamacare repealed. The Supreme Court already did that work, so that major issue is gone. Move on!

3. There are 5 activist conservatives on the Supreme Court, and if you elect a Republican, by the end of his term, there might be 7. The Court will skew far right, destabilizing the law as we know it. There is a great danger here that you must guard against by keeping me in the position to nominate the next Supreme Court Justices and thereby to rebalance the Court.
If Obama wins, the GOP candidate — presumably Mitt Romney — will be able to say:
1. Obamacare is a terrible disaster looming and bearing down on us. You may have thought the Supreme Court would save us from this dire consequence, but it did not. Alarm! Alarm!

2. The Supreme Court left this matter to the political processes, and it is therefore imperative that the political process work — by electing me — to make a repeal possible.

3. There are 5 activist liberals on the Supreme Court, including the 2 liberal Justices chosen by Obama to rubberstamp his liberal agenda. If you reelect Obama, by the end of his second term, there might be 7. The Court will skew far left, destabilizing the law as we know it. Do you want Kagan II and Sotomayor II joining the Court? You must elect me to restore balance.
ADDED: I think that a loss for Obama would be so politically advantageous for him that he might prefer it. Here's where I play with the idea that he's secretly trying to lose, and that's why the SG's argument yesterday was so bad.

The NYT fails to engage with any of the most compelling arguments made against the healthcare mandate.

Here's the embarrassing editorial they printed, apparently trusting that readers would accept their characterization of what went on at the oral arguments yesterday, pack up a neat opinion that only activist judges would strike down this law, and move on to other articles... ooh, look! over there on the "most e-mailed" list! It's "The Chocolate Diet?" and "Forging Social Connections for Longer Life" and something about private schools and "The Brain on Love"... la la la... it's so nice to be a good person who cares about the right things and believes what the good people believe...

But who is the New York Times really talking to? I think it's Justice Kennedy, who, everybody who know anything knows, is the vote which, if you have it, you will be on the side that gets the majority in this case. So... Hey, Anthony Kennedy! Don't you see what all the good people whom you need to keep loving you are all going to believe? All those pesky arguments that you publicly puzzled over yesterday are as nothing to the elite class of Americans who internalize New York Times editorial opinion as if it were yummy chocolate that somehow also makes you lose weight.

"It’s the iPads and laptops with the plausible-but-fake information that you leave out in the car. Oh, right."

Ah, yes!

And when they use that material, we will know who the thieves are. Fiendishly devious.

"It’s not simply a brutal killing. This act of violence at the heart of it is really sacrifice of a very striking kind."

After violent murder and mutiliation, they "then drink the juices the decomposing body releases, after which they retrieve parts of the body to kill their next victims."

March 27, 2012

One year ago at the Wisconsin protests: "Shame, shame, shame... Where is the shame?"

"Is it in wearing a gray hoodie under a tailored blazer, a little black derby hat, and a smelled-a-fart expression while carrying a pre-printed 'SHAME' sign when the guy marching after you is wearing a windbreaker and carrying a handmade 'TAX the RICH' sign?"
Is it in carrying a 3D representation of the governor's bare ass while being followed by a blanketed-up old woman in a wheelchair against whom is propped a gigantic "SHAME" sign?

Is it in wheeling around an old woman against whom is propped a gigantic "SHAME" sign and sticking mylar pinwheels into her blankets?

Is it in marching — while holding, instead of sign, a take-out coffee — while a woman holds up a "SHAME!" sign and you (apparently) supervise a child who is bearing a handmade "InaPPropriate Boob" sign which depicts (presumably) Scott Walker being directed toward a blazing fire.
Where is the shame? Is it in my photography and my questions? Should I be ashamed to see alternate meanings in the "SHAME" signs the Wisconsin protesters display proudly?

10 highlights of today's Obamacare oral argument.

1. Justice Alito asks Solicitor General Verrilli if he could state "as succinctly as possible" a "limiting principle" on the Commerce Clause doctrine that says "Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce." Transcript (PDF) at 43. Verrilli proceeds to give a 200+ word answer, which I will try to compress into something actually succinct. Actually, I can't, because he doesn't articulate limits, he only makes an assertion about what Congress can do. Congress may force individuals to buy a product "if it is necessary to counteract risks attributable" to "a comprehensive scheme it has the authority to enact," and
Congress can regulate the method of payment by imposing an insurance requirement in advance of the time [when] the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when -- when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.
Okay. Not succinct at all. And not responsive either. Can the SG state limiting principle? Obviously not.

Jeffrey Toobin on the SG's argument today: "This was a train wreck for the Obama administration."

"I don't know why he had a bad day," said Toobin. "He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices."

Aha! I might know why the Solicitor General Donald Verrilli was so bad. I told you last October 2d I had a theory:
I have a conspiracy theory, but I won't tell you what it is...

... because I hope the conspiracy — if it exists — succeeds. Some time next year, I'll tell you what the theory was, as this is a conspiracy that will play out within a limited time frame. Don't try to drag it out of me. I am not in this conspiracy, but I don't want to blow the lid off of it. It's has to do with certain political actors seeming to be pursuing one goal, when actually they seek the opposite.
What say you? Did the SG throw the game?

The pulsatilla is really pulsing...

... when Chip Ahoy stops in at my Pulsatilla Café.

It's like Watergate... but with laptops and iPads.

And who knows who committed this theft?
Last Friday, two campaign aides left their rented SUV in the Horton Plaza parking garage while they got dinner. When they returned, someone had grabbed all their belongings, including two iPads, two handheld radios and two laptops with detailed information about Romney's presidential campaign.

Police said there was no sign of forced entry on the SUV and they are still not sure if the burglary was random or if Romney's aides were targeted. Luna said the laptops and iPads could be a treasure trove of valuable insider information for Romney's opponents.

Reports from this morning's oral argument in the Obamacare case.

Tom Goldstein, mid-argument:
It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant....

When the Solicitor General argued that the mandate does not require people to purchase health care, but instead merely regulates when and how they will pay for that care, Justice Kennedy seemed skeptical, asking whether Congress’s power to regulate commerce allows it to create commerce to then regulate. 
And at the end of the argument, Kennedy asked "the most important question," whether "the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment." Goldstein added: "But he didn’t overtly embrace that. It will be close. Very close."

AND: Lyle Denniston says:
If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.
Denniston thinks the SG failed to convince Kennedy, but the then the lawyers for the challengers somehow undercut their own case in Kennedy's eyes. I need to listen to the recording and read the transcript. I think someone who genuinely hadn't decided might come at the lawyers on both sides with questions containing the doubt that he had about going their way so they could come forward with their strongest arguments.

ALSO: Adam Liptak writes:
“Can you create commerce in order to regulate it?” Justice Anthony M. Kennedy asked the lawyer, Solicitor General Donald B. Verilli Jr., only minutes into the argument.

Justice Antonin Scalia soon joined in. “May failure to purchase something subject me to regulation?” he asked.

Chief Justice John G. Roberts Jr. asked if the government could compel the purchase of cell phones. And Justice Samuel A. Alito Jr. asked about forcing people to buy burial insurance.

The conventional view is that the administration will need one of those four votes to win, and it was not clear that it had captured one....
Liptak characterizes the argument as "unusually intense and pointed" — and 2 hours long.

"[T]he things that matter in the world don’t have to be boring and guilt inducing."

"And the addictive stuff we love doesn’t have to be completely substanceless."
To that end, Upworthy, which is meant to be spread via social media, is using strong visuals along with arch, but serious, curation to find the sweet spot between things that are both “awesome” and “meaningful.” Among the memes they’d like to start, the “17 sexiest pictures about income inequality.”
A nice NYT boost for a very early stage effort at a political website (which I'm not sure is really ready to be looked at).
The site is small and rudimentary, but it has some backing from Chris Hughes, one of the founders of Facebook who recently doubled down on seriousness by buying The New Republic.
The founders of the website come from The Onion and

The complicated story of Linda Lovelace — soon to be 2 motion pictures.

The star of "Deep Throat" — which is the most profitable movie ever made – led a fascinating life that tracked so many of the cultural trends we lived through. Of course, she got none of the $600 million the $30,000, hour-long movie made. That had to be annoying. But she was the face (and neck) of the porn that suddenly everyone felt they could actually go see. The Nixon administration prosecuted the filmmakers for obscenity. You've got bad old Nixon coming after you. What a strange combination of glamor and squalor!

Her follow-up films flopped, and she became a heavy cocaine user in the mid-1970s, then she made the God move: "God had changed her life." When the 80s came around, she threw in her lot with the feminists:

80-year-old man arrested after shooting a 19-year-old home intruder.

Key word: "after." Homer Wright was arrested because as a convicted felon, he is barred from owning a gun.
Darryl Smith, 42, a self-employed tow truck owner who lives down the street from Wright, said he finds it outrageous that police arrested his neighbor, who Smith said runs his business out of the home....

“His life is just as valuable as someone who doesn’t have a felony,” Smith said.

The Wisconsin senate, now evenly split, is fighting over access to lawyers' communications about redistricting.

The Republicans lost their majority when Sen. Pam Galloway (R-Wausau), facing a recall election, abruptly quit. Pending the election, which either party's candidate could win, the 2 parties must share power, and the dispute over redistricting enters a new phase:
Republicans hired Michael Best & Friedrich last year to help them draw the maps, with the firm signing separate contracts with the Assembly and Senate. One of those contracts - written when the GOP controlled both houses - says "our client is the Wisconsin State Senate by its majority leader, Scott L. Fitzgerald."
Fitzgerald is no longer the leader of the majority, only the leader of the Republicans. The Democrats also have a leader.
Democrats for the last 15 months have contended they should have equal access to Michael Best because the contract was with the entire Senate. Republicans balked, barring them from consulting with the attorneys.

"I don't want to live in that world, to tell you the truth..."

"It's a world without guys building treehouses for their kids. It's a world without train sets. It's a world without fun."

A man bemoans the loss of...

Al-Jazeera chooses not to air video of the Toulouse shootings.

BBC reports:
[Mohamed] Merah filmed himself killing seven people, including Jewish children and unarmed soldiers, before he was shot dead after a 32-hour siege last week....
Someone mailed al Jazeera a USB memory stick with edited footage and a note claiming the attacks were committed in the name of al Quaeda. Since the postmark shows it was sent after Merah was under siege and from outside of Toulouse, it indicates that Merah had at least one accomplice. Whoever prepared the video combined footage of all 7 shootings with music and Islamic verse.

Al-Jazeera explained its policy:
"Given its contents, we immediately passed the video on to the French police as we were duty-bound to do and they are conducting their investigation. In accordance with al-Jazeera's code of ethics, given the video does not add any information that is not already in the public domain, its news channels will not be broadcasting any of its contents."

..."You hear the voice of the person who carried out the killings," [al-Jazeera Paris bureau chief Zied] Tarrouche told French channel BFM TV. "You also hear the victims' cries. My feelings are those of any human being who sees horrible things."

Mr Tarrouche said he had to weigh up the "risks and the consequences" of airing the video, but he added: "We are not a sensational network."
I hope that is indeed their policy. I suspect that there are also fears of legal consequences. This is al-Jazeera in France, where presumably there is law enforcement against those who are in a conspiracy with murder and who serve as accomplices after the fact.

"Area Mormons welcome chance to explain their faith as Republican primary heads to Wisconsin."

A Wisconsin State Journal article.

Has this been a feature of the GOP primary in other states? I hadn't noticed. Romney seems extremely low key about his religion. I get the impression he's one of the many people who continue the traditional religion within their families, not because any of the particular details of that religion seem especially persuasive, but because a person tends to need a religion, for social and psychological reasons, and the most moderate approach to religion is to adhere to the faith of your parents and grandparents.

"James Cameron becomes first solo explorer to reach the deepest point of ocean."

He directed "The Abyss" and "Titanic."Why the obsession with the bottom of the ocean?
“The Jacques Cousteau shows actually got me very excited about the fact that there’s an alien world here on Earth,” he said. “I might not go to an alien world on a spaceship someday — that seemed pretty unlikely. But [the ocean] was a world I could really go to right here on Earth that was as rich and exotic as anything I had imagined from reading these books.”

Today's oral argument in the Supreme Court covers the constitutionality of the individual mandate.

This is the question most people have focused on: Does Congress have an enumerated power to regulate individuals who fail to buy health insurance?
The Obama administration argues the insurance mandate is a valid way to address a national crisis in which the uninsured impose huge costs on the U.S. health-care system. It also says the provision is an essential part of the law's insurance reforms, which require insurers to accept all prospective customers, even if they have pre-existing medical conditions.

U.S. Solicitor General Donald Verrilli will be up first Tuesday morning, allotted an hour to make the administration's case to the justices. Two lawyers representing the challengers will each have 30 minutes to respond. Paul Clement, a former solicitor general during the George W. Bush administration, will argue on behalf of the state challengers. Michael Carvin of the Jones Day law firm will argue for the National Federation of Independent Business and a group of individuals challenging the law....
I'll have much more to say when the transcript of the argument becomes available.

March 26, 2012

At the Pulsatilla Café...

... we're still alive.

One year ago today at the Wisconsin protests: a ragtag band plays and suddenly we have our encounter...

... with our assemblyman, Brett Hulsey, who'd been avoiding Meade.

"You don't care at all about the truth."

Santorum to reporters.

Obama to Russian President Medvedev: "This is my last election. After my election I have more flexibility."

"On all these issues, but particularly missile defense, this, this can be solved but it’s important for him to give me space," he said, referring to incoming Russian President Vladimir Putin.

The Solicitor General argues that failure to comply with the requirement to buy health insurance does not equal a violation of federal law.

I'm at page 47 of the transcript (PDF) of this morning's oral argument, as the Justices explore whether they are dealing with the collection of a "tax" within the meaning of the Anti-Injunction Act. The Affordable Care Act imposes a "penalty" for failure to buy health insurance; it doesn't call the penalty a tax, but it collects the penalty through the individual's tax returns.

Justice Alito asks Solicitor General Verrilli whether the government is saying that in cases where someone is "exempt" from the penalty, it means that the person is "not under the obligation to maintain minimum essential coverage." The SG says that's right. Chief Justice Roberts says those with exemptions are subject to the mandate, just enjoying an exemption from the penalty. The SG says "you cannot infer from the fact that someone is exempt from the penalty, that they are still under an obligation to have the insurance."

Courts can decide whether the State Department can decline to follow Congress's statute allowing Americans born in Jerusalem to have their passports say "Israel."

The question is justiciable — it's not within the "political question doctrine" — says the Supreme Court today, in an opinion, Zivotofsky v. Clinton, written by Chief Justice Roberts. Roberts states the doctrine in the one-line form that Chief Justice Rehnquist used in Nixon v. United States (1993): Is there "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it." (The language comes from the 1962 case Baker v. Carr, but Baker v. Carr phrases the doctrine in terms of 6 factors. The Nixon version refers only to the first 2.)
The lower courts ruled that this case involves a political question because deciding Zivotofsky’s claim would force the Judicial Branch to interfere with the President’s exercise of constitutional power committed to him alone. The District Court understood Zivotofsky to ask the courts to “decide the political status of Jerusalem.” 511 F. Supp. 2d, at 103. This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under §214(d), to choose to have Israel recorded on his passport as his place of birth....
The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise. 
Moreover, because the parties do not dispute the interpretation of §214(d), the only real question for the courts is whether the statute is constitutional. At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at 177. That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.” INS v. Chadha, 462 U. S. 919, 943 (1983)....
Thus, there is no "textually demonstrable constitutional commitment of the issue to a coordinate political department." Are there "judicially discoverable and manageable standards"? It might seem so if you think the question is the political status of Jerusalem, the Chief writes, but the issue is whether the statute is constitutional: Can Congress interfere with the Executive and create the right that Zivotofsky now asserts? The answer may be no, but that's the answer on the substantive constitutional merits, not a determination that the courts may not reach the substantive merits. Reciting all the arguments for and against congressional power, Roberts reject the notion that they show why judges cannot answer the question:
Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do.
So the "political question" argument fails and the case returns to the D.C. Circuit court to get on to the substantive merits.

Stomach-stapling surgery as the preferred treatment for diabetes.

"The new studies...  are part of a push by surgeons and obesity experts to establish a role for the operations in treating diabetes, not just obesity...."

The obesity experts with their bariatric surgery are big players in the market in health care. Where will all the money be channeled? I can't help feeling very negative about surgery that simply makes it really hard to eat, but that only produces weight loss because the person is eating less, which could be done without surgery. Just eat less! That would be free. That would save money. But so many people cannot do that.

The Supreme Court Justices "seemed to be all on the same page looking for a way to go ahead and decide the case even though they had different views on what theory to use."

A first report from today's oral argument about the applicability of the Anti-Injunction Act to the Obamacare litigation. Kevin Russell says that there was "skeptical questioning from at least 5 Justices." They all seemed to want to get over the purported threshold barrier and on to the substantive merits of the case, though they seemed to  who were offering different theories about why they should go forward with the case.

According to Russell, Justices Breyer and Sotomayor focused on the idea that the penalty for failure to buy insurance is not a tax. Justice Scalia gravitated toward a rule of statutory construction: jurisdictional limits are usually construed narrowly. Justice Alito looked at the government's failure to raise the Anti-Injunction Act bar, which could constitute a waiver of the bar that would be effective as long as the Act isn't considered a jurisdictional limitation (that is, a limit on the judicial power that the courts must observe whether the parties want them to or not).

The Chief Justice asked the Solicitor General (representing the U.S. government) to waive the Anti-Injunction Act (which would be effective only if the bar is not jurisdictional), but he refused. The Chief pressed him: Why would it not be in the interest of the United States to waive the Act? From Russell's report, it sound like the SG's answer stress the importance in other cases of having the act work as a jurisdictional bar. (That is, it helps the U.S. collect taxes if it lacks the power to waive the limitation, because in those other cases, the government's lawyers may fail to raise the bar in time to avoid waiver and then later want to invoke it.)

UPDATE: You can listen to the oral argument and read the transcript here.

UPDATE 2: On page 35 of the transcript, I detect eagerness in Justice Ginsburg to say that the Act does not apply in order to avoid the question whether the act is jurisdictional. When the SG agrees with her that the question could indeed be avoided, Justice Kennedy says "Don't you want to know the answer?" and gets a laugh. Kennedy then bears down: You just said "it would be very troubling to say that it's not jurisdictional," but why don't you think the opposite: That it would be good to know that the Act is waivable? The answer is that the government wants to be able to use the act as a bar in cases where the government's lawyers may have inadvertently waived it. (This point is in the original post, and I think Russell or the transcript misidentifies the Justice asking the questions. Was it Roberts or Kennedy?)

The big week of Obamacare oral arguments begins with "the most boring jurisdictional stuff one can imagine."

It's like "a kind of practical joke that the court is playing on the public," says Paul Clement (who represents the 26 states that are challenging the law). (Personal note: I teach the law school course Federal Jurisdiction, and this "anti-injunction" topic — by chance — is up for discussion this week.)
In the Supreme Court, the administration suggested that the justices appoint an outside lawyer to argue that the [Anti-Injunction Act] bars the challenges. The justices asked Robert A. Long to do so, and he goes first on Monday.... Mr. Long says the 1867 law is “jurisdictional,” meaning it forbids courts to hear suits even if, as here, neither side objects....

In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax....

[Solicitor General Donald B.] Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law is in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes.
It's not a tax whenever you don't want it to be, and it is when you do. That's the administration's argument! And that's what the NYT — in the linked article by Adam Liptak — calls "potential tension." (Cue the comments: This is why people hate lawyers.)
Mr. Verrilli argues that the name that Congress gave the payment required for violating the mandate in the health care law —a penalty, not a tax — matters for purposes of the 1867 law but is irrelevant in connection with the constitutional taxing power, where “it is the practical operation of the provision, not its label, that controls.”
See how easy it is to dissipate the tension? Why, it's an orgasm of tension relief! The old law refers to things designated a "tax," but Congress chose not to call the penalty a "tax." To call it a tax would have further inflamed the political opposition to the health care bill. Now that the bill has passed, however, we can coolly examine what it really is, and what it really is is what counts when the question is whether Congress has an enumerated constitutional power. It really is a tax, so it's within Congress's power to tax. That's the argument.

Isn't it fascinating how everything works to bulk up the power of Congress? Congress built political support by not saying tax when the bill was up for a vote, and it claims constitutional power by saying tax at the point when the Court is analyzing the bill after it is passed. What's most frustrating about this it's-not-a-tax-it-is-a-tax turnabout it that when the Court interprets Congress's powers, it exercises restraint, deferring to the political process, because that's where policy decisions are properly made. But  it was at the political, policy-deciding stage where Congress hid the reality of this massive new TAX.

But today is only about the Anti-Injunction Act, and it's key that the challenge is to the requirement that everyone buy health insurance and not just to the penalty that is imposed on those who don't meet the requirement. The requirement isn't a tax, even if the penalty is a tax. But it seems that the Taxing Power argument depends on the characterization that all we really have here is a tax, that the mandate is actually nonexistent. As I was saying the other day, that makes a lot of sense: The penalty is so small in relation to the cost of buying insurance that the requirement operates merely to define who owes the tax.

And yet, when Congress was passing the bill, the people never understood it that way. It was utterly hidden under an incomprehensible mass of text and propaganda. There was no transparency. It rankles to think that Congress could acquire this dramatic power by a monumental political deception. But will this shake the Court out of its usual position of comfy restraint? Perhaps we'll get a hint of an answer today, as the Justices react to the lawyerly contortions around the Anti-Injunction Act.

March 25, 2012

At the Narcissus Café...

... reflect.

One year ago today at the Wisconsin protests: there's a Planned Parenthood rally...

... and Meade's efforts to talk to our Assemblyman Brett Hulsey are aborted.

At the Wisconsin Supreme Court today...

... I served as one of the 7 justices hearing the final stage of the Evans Moot Court Competition. Look how lovely the hearing room is!

ADDED: Someone took a picture of me:

Wang Jun will stand on a scale for 1 month as a work of art called "Keep Fit Deal 15."

He intends to lose 16+ pounds but also to constitute "a metaphor of the current inflated era which should lose some weight." He says: "In this materialistic age, in the era of pleasure-seeking and greed, all things are inflated infinitely, slowly lose the beautiful and clear origins."

His performance will appear on line via web cam, and he will not leave the scale even to go to the bathroom. I suppose that too is a metaphor, but it's hard to say what it represents.

Who could imagine that there could be this kind of trouble...

... going on in the world of My Little Pony?

"Why Men Opting-Out Should Make You Angry"/"Puppies You Need More Than A Man."

HuffPo headlines, more or less inconsistent.

The first link is via Instapundit, who adds, sarcastically, "Apparently, women should always be angry." Now, now, with puppies, that need not be so.

"Reince, I hate to burst your bubble, but nobody in Wisconsin is talking about the presidential primary."

Because we're all consumed by the Scott Walker recall election.
Volunteers working on the national campaign are few and far between. About 30 times more Republican activists are tied up helping Walker win his recall race than helping GOP front-runner Romney win the nomination, [Romney campaign co-chair Ted] Kanavas estimates. Romney's campaign has only one office in Wisconsin, compared to the 21 opened by Walker.

Thus, with the [presidential primary] election only a little more than a week away, Wisconsin is a black hole in a race that has been fiercely contested coast to coast since January, a sharp contrast to the recent contests in other Midwestern states like Michigan and Ohio.
Rightly so. Walker's survival as governor is far more important to the Republican Party and to national politics than the next step in the selection of the presidential candidate.

At the Cardinal-on-Car Café...

... you can find your perfect place.

"A rapidly increasing stream of New Age believers – or esoterics, as locals call them – have descended..."

"... in their camper van-loads on the usually picturesque and tranquil Pyrenean village of Bugarach."
They believe that when apocalypse strikes on 21 December this year, the aliens waiting in their spacecraft inside Pic de Bugarach will save all the humans near by and beam them off to the next age....

Further, rumours persist that the country's late president François Mitterrand was transported by helicopter on to the peak, while the Nazis, and, later, Israel's Mossad, performed mysterious digs there. Now the nearby village is awash with New Agers, who have boosted the local economy, though their naked group climbs up to the peak have raised concerns as well as eyebrows. Among other oddities, some hikers have been spotted scaling the mountain carrying a ball with a golden ring, strung together by a single thread.
Meanwhile, the aliens inside the Pic de Bugarach are saying: Do we really need to take these nearby humans? Can't we gather some further away humans? These people seem like idiots.

Women "in a room... tend to be a little more reasonable" than men.

Brown professor Wendy Schiller, spouts blatant nonsense, but obviously believes herself to be reasonable. Then Andrew Sullivan lambastes Hillary Clinton. It's all good fun. Check it out.

Dying cultural phenomenon alert.

Whatever happened to "mic check"? Why, only last fall it was a burgeoning new cultural phenomenon. Look at Richard Kim burbling in The Nation last October:
We Are All Human Microphones Now

... [T]he protesters [have] adopted an ingeniously simple people-powered method of sound amplification. After the mic check, the meeting proceeds:

with every few words / WITH EVERY FEW WORDS!

repeated and amplified out loud / REPEATED AND AMPLIFIED OUT LOUD!

by what has been dubbed / BY WHAT HAS BEEN DUBBED!

the human microphone / THE HUMAN MICROPHONE!!! (jazz hands here).
Jazz hands here, indeed.
The overall effect can be hypnotic, comic or exhilarating—often all at once. As with every media technology, to some degree the medium is the message....
Oh, yes it is. And that particular message lost its appeal. Am I wrong?

Photographing Obama/Clarence Thomas so he appears to have a halo.

I've seen many photographs of Obama that go for a halo image around his head. Photographers/editors seem to really love this kind of thing:

So it caught my eye when the New York Times — in "Groups Blanket Supreme Court on Health Care" — chose a haloed image of Clarence Thomas:

I exclude the possibility that this is an accident. The selection of photographs in the NYT is exquisitely deliberate. I exclude the possibility that the NYT adores Thomas. The halo cannot possibly reflect the religious awe that we sense in the Obama halo pictures. I doubt that is has anything to do with race, though Thomas, like Obama is black. That is, maybe strange notions of spiritualism arise in the minds of white photographers and editors when they gaze at images of black people. Maybe!

I can only come up with 2 explanations I think are plausible:

1. The Clarence Thomas halo is a really messed up halo, constructed of fuzzy dots and sagging at either end. It vaguely calls to mind a UFO. It therefore conveys a negative opinion of the man, especially if you also think of the extremely well-formed haloes that appear around the sainted President's head.

2. The NYT is trying to butter up Clarence Thomas. They'd like to influence him to uphold the health care law. The article begins with an elaborately set-up quote from Thomas, likening Supreme Court decisionmaking to shooting free throws in basketball: You focus on the rim and ignore all the crowd noise.
With three days of arguments scheduled for this week, the nine justices will need the steely nerves of a clutch free-throw shooter to block out all the noise surrounding a case that has generated perhaps the most intense outside lobbying campaign that the court has ever seen.
The article itself is part of that campaign, no?
Proponents of the sweeping 2010 law, working with the White House, have also developed “talking points” to emphasize the potential harm if the law is thrown out, including the reduction in coverage for those with pre-existing conditions and for young adults who wish to remain on their parents’ policies.
Yes, it will take an immense amount of nerve to throw out this uniquely momentous law. I don't think they can exclude all the noise. Maybe Thomas can, but none of the others. Maybe Scalia. But the question is whether the pressure against the law feels greater than the pressure for it. It's momentously valuable/momentously destructive. The noise could cancel itself out, leaving the Justices to decide using a purely legal methodology.

And if they could do that, they would all deserve haloes. But sophisticated legal folk don't think there is any such purity to be found among mortals.
“All that other background noise, I never — I don’t listen to all this stuff,” [Clarence Thomas] said. “I don’t read the papers, I don’t watch the evening news.” If justices let outside pressures distract them, he said, “in my opinion, you have no business in the job.”
Jesus said: "You therefore must be perfect, as your heavenly Father is perfect." And Paul wrote: "All have sinned and fall short of the glory of God."

This is the most disturbing thing I've read in a long time.

A big quote over at Instapundit. Click on the link. Oh! It's Mark Steyn. He's always predicting the end of the world. I feel better now.

Not really.