tomorrow and probably the day after

a primer on discrimination, 2000 pli/rep 2006.

2006-05-23T20:07:00.000-07:00

republicans in congress are hosting a clinic these days on discrimination. here's how it works:

first, attack people for wearing atypical hairstyles (blaming the cynthia mckinney debacle on her afrocentric hair). next, attack people for entering atypical marriages (straight marriage amendment). next, attack people for speaking atypical languages (immigration bill amendment to establish english as national language). the current republican platform reads like 'steal this book' for the racist, xenophobic, misogynistic, homophobic, redneck revolution (did i miss any?) - not to offend anyone.

here's my alternative proposal for a national language:

'learn as many freaking languages as you can. speaking foreign languages is worth its weight in gold in today's global economy. and by the way - don't be an asshole.'

what exactly is the point of declaring english the national language? i'm not normally one to jump to conclusions (lie, sorry), but the only reasons i can come up with are despicable. props to anyone who can conjure a non-hateful explanation for this amendment.

reaching the summitt.

2006-05-22T18:46:00.000-07:00

pat summitt signed a landmark deal today, becoming the first female coach, and the first coach of a women's basketball team, and (maybe?) the first coach of any women's athletic team, to earn a million dollars a year. the cnn.com story is here.

tennessee university will pay summitt $1.125M to coach their lady vols in 2006-07, and $7.75M over the next six seasons. congrats to summitt, who has spent the last 32 years at tennessee (an outstanding accomplishment itself, the fact that she's a woman coaching amateur women's basketball aside).

everyone is writing and talking these days about hillary clinton's 08 presidential bid. i've wanted to contribute some thoughts, but before today, i didn't have an original angle. now i do: if a woman can earn over a million dollars to coach a women's college basketball team for a single season, then hillary can be elected president of the united states.

sports do not share the arts' storied history of progressivism. the negro leagues; adolf rupp's kentucky basketball team; some white player conspicuously raising his foot as he slides into second base to disrupt jackie robinson's double play with a metal cleat to the shin; or jim brown being paraded condescendingly around the browns' all-white after-game party, before being told candidly to leave. sports have traditionally been behind the curve when it comes to acceptance and inclusion, and change seems only to have been galvanized by major societal restructuring.

until very recently, women have been totally absent from large-scale organized sports, with a small handful of notable exceptions. but things seem to changing, and not particularly slowly. this week alone you've seen michelle wie battling to earn a spot in a men's pga tournament; and pat summit signed a contract to take nearly 8M bucks off of tennessee's hands before 2013. is there any doubt that things are changing? that they're changing in a significant and probably irreversible way? that resisting is futile?

you can hardly watch television, or read a paper, and go outside without realizing the trend. you probably get your world news from a woman (katie couric), your sports news from a woman (linda kohn), not to mention your life (and probably a lot of your positive characteristics) from a woman (your mom - no joke). germany has a female chancellor (merkel), and france may soon have a female president (royal). all the talk about hillary is great - the fact that our country is having the discussion at all is evidence of progress. but if you think hillary can't win because she's a woman, or just that a woman can't win generally, then i suggest you go ask pat summitt. my guess is she's got a different idea, and plenty of time on her hands to explain it to you.

Gay Opposition Party

2006-05-19T08:17:00.000-07:00

Yesterday, the Senate Judiciary Committee reported the federal marriage amendment (S.J. Res 1) on a party-line vote of 10-8.

A couple of weird things happened: the markup was held in a different room that the usual one, a small room off the Senate floor, while the full Senate was considering the immigration bill, so there was little opportunity to properly debate it. Whatever – we’re only dealing with writing discrimination into the Constitution and allowing religion to trump politics. No big deal.

Furthermore, staff and press could hardly fit into the room, which suggests that Chairman Specter didn’t want to be all too public about this. Senator Feingold criticized Specter for not facilitating a real public meeting and said he would leave the markup. As he was about to leave, Specter shot back: “I do not need to be lectured by you. You are no more a protector of the Constitution than am I. If you want to leave, good riddance!”

Feingold’s response: “I've enjoyed your lecture, too, Mr. Chairman. See ya.”

‘The world’s greatest deliberative body’? I don’t think so.

But weirder than that is Specter’s reason for voting in favor: After saying he “totally opposed it,” Specter voted for the amendment “to allow its consideration on the floor.” That’s an interesting approach. I am totally opposed to the on-going genocide in Sudan, but in the interest of floor consideration, I am just going to go ahead and vote in favor of it. In fact, I’ll vote for it on the floor as well, just so we can get a real debate in society about this. Huh?

There is not a majority for the same-sex marriage amendment in the Senate, so this is nothing more than the kick-off of Senator Frist’s presidential campaign. And I guess that campaign is much more important than, say, solving all the real problems in America.

The Senate is scheduled to vote on the amendment after Memorial Day recess, the week of June 5.

a quick look.

2006-05-12T08:24:00.000-07:00

legal analysts gave short shrift this week to the idea that the nsa's newest domestic surveillance program might violate the fourth amendment. rather, they say the nsa probably violated several congressional statutes, including fisa and a 1930's communication act. by all accounts, the nsa program appears so comprehensive in scope that i would give the constitutional question a closer look. i would also consider the possibility that the court, if properly asked, might narrow its prior holdings to disallow this egregious govt overreaching.

the 1979 case of smith v maryland is right on point. in smith, a baltimore woman was robbed near her home. she described to police her assailant, as well as a suspicious 1975 chevrolet monte carlo she had spotted around the time of the robbery. later, the woman began receiving threatening phone calls from a man who claimed to be the robber. on one such occassion, the caller asked her to look outside, which she did and saw the 75 monte carlo cruising past her home. she notified police, who located nearby a man in a 75 monte carlo meeting the robber's description. the police used the car's license plate number to obtain its owner's address. then, without even applying for a warrant, the police installed a 'pen register' at the local telephone company to record the numbers dialed from the owner's telephone. the next day, the woman's phone number was dialed from the monte carlo owner's phone. the police used this nugget to acquire a search warrant for the owner's home, where they found evidence of the robbery. the defendant's motion to suppress the evidence as 'fruit of the poisonous tree' was denied by the maryland courts. the supreme court affirmed that decision.

the supreme court held that there is no legitimate expectation of privacy in the numbers you dial from your telephone. people have no subjective expectation of privacy in these numbers, which they share voluntarily with the phone company, nor would such an expectation be one society is prepared to accept as reasonable. the court was particularly persuaded by the distinction between monitoring the numbers dialed from a phone, versus the content of the communication. no fourth amendment violation occurs where the govt monitors only the numbers dialed, and does not even learn whether any communication ensued.

the facts of the smith case were not apt to produce any other result. first, the police could likely have obtained a warrant to monitor the monte carlo owner's calls based on the facts already known to them. therefore, i would characterize the case as involving a quasi-exigency. the exigencies were not those that traditionally obviate the need for a search warrant, but the search in this case was so limited in scope that lighter exigencies could be found to justify it. you might call this a 'sliding scale' exigent circumstances test based on the intrusiveness of the warrantless search for which justification is sought. this interpretation of the smith facts would severely limit the precedential value of the case in a consideration of the govt's conduct now at issue.

the nsa program appears to be far more expansive than the limited use of a pen register at issue in smith. if, as seems to be the case, the govt is collecting enormous amounts of information without any cause for suspicion, then it may have violated the fourth amendment. the govt could easily use records of outgoing phone calls and internet activity to paint an extremely vivid picture of any american's personal life. the govt would not need the content of a person's communications to accomplish this. the mere placement of calls and websites visited encapsulate nearly all our interaction with the outside world. a person's expectation of privacy, therefore, is not in any specific number dialed from his/er phone, but rather an expectation of privacy in large quantities of information that collectively could be used by the govt to extrapolate almost anything about his/er life. i believe americans do expect that large quantities of this type of information will be kept private, and further that this expectation is eminently reasonable.

the govt will clearly seek to limit the court's consideration of these issues. if the govt may constitutionally collect each dialed number individually, how can it violate the fourth amendment simply by collecting many dialed numbers? this is a clever argument, and it is certainly the conundrum the smith holding presents. but ultimately i don't think the distinction will be compelling in a court of law or the court of public opinion. consider as an analogy a bucket full of water. to convince you the bucket is not full of water, i remove one cup of water at a time, each time noting that i am not removing a bucketfull of water. when the bucket is empty, i explain that the bucket could not have been full of water because i emptied it without ever removing a bucketfull of water. point is, it's possible to accomplish an impermissible result by taking many small steps, each one itself permissible.

i, for one, would like to see the expectation of privacy viewed extremely broadly in this case to disallow a 'big brother' style collection of personal data by the govt. and, i would like to see the smith case limited, or distinguished away, to accomplish this result. thoughts?

the war on calling things the war on.

2006-05-10T12:58:00.000-07:00

the war on exams is over. it went well, thanks for asking. i promised a post on the cover article from last week's sunday new york times magazine, entitled 'the war on contraception'. i hate how everything these days is 'the war on [blank]'. it kills me.

until a few months ago, i wasn't aware of the full extent of the christian right's opposition to contraception. i knew that the legal underpinnings for the right to choose an abortion (roe v wade) and the right to purchase contraception (griswold v connecticut) were connected. and i knew that most strains of christianity consider pre-marital sex a cardinal sin. and i knew the catholic church was opposed to the morning-after pill. but i didn't realize that the very same anti-choice, pro-life, anti-abortion (whatever you call it) movement had on its long-term agenda the criminalization of all forms of birth control. i'd imagine many other folks were in the same boat as me.

a double shot of work at naral pro-choice america and two weekends of catholic marriage preparation classes brought me up to speed on the issue. i learned immediately that naral considers its fight to encompass protecting not only the right to choose surgical abortion, but also the right to use safe, non-natural methods to prevent unwanted pregnancies, i.e. family planning. this makes good sense, because the catholic marriage 'preparers' sought to ensure that no one - literally, no one - uses any non-natural form of contraception; be it condoms, birth control, or anything else. i was shocked the learn that there is actual dispute over whether people should have access to contraception. i'd imagine many other folks were also shocked sunday morning when they saw the cover of the times magazine.

russel shorto's article exposes the christian-based organizations that put themselves out as fighting against abortion, but whose ultimate goal is no sex for non-procreative purposes. although this goal is kept mostly quiet, the article makes clear that it has wider support than most americans can probably fathom.

there is nothing to be done about private religious groups voicing their opinion. elected officials, on the other hand, should not be allowed to get away with sharing these radically conservative and puritanical views. politicians who oppose access to contraception need to be weeded out of american govt like the infiltrators they are. these beliefs are nowhere near the american mainstream, and voters have a right and a responsibility to learn who shares them.

i propose a constitutional amendment etching in stone once and for all (prohibition aside) the right to contraception. the right to privacy, first enunciated in griswold then expanded in roe, has already been added to several state constitutions. but the privacy right, which includes the right to abortion, is almost certainly too unpopular to succeed in the amendment process at the federal level. on the other hand, contraception is probably sufficiently well-accepted to gain the necessary support in all fifty states. this process would force politicians who believe contraception should not be legal and/or available to voice that opinion at the national level. let rick santorum take the podium and tell america he believes condoms should be against the law on a global level.

how about a war on people who are fighting a war on contraception. and a war on calling things the war on. sign me up.

william safire is william safire.

2006-05-07T08:57:00.000-07:00

i know, i know. i'm supposed to be studying for exams, not blogging. i'm on my way to the library now. but first i have to point everyone to william safire's 'on language' column in today's new york times sunday magazine. the column, entitled 'tautophrases', is here.

we were talking about tautologies on tomorrowandprobably way back here. there was some dispute about whether iamwhoiam is a tautology. safire's tautophrase encompasses the spirit of that debate. he offers an interesting look at some famous tautophrases from throughout history - from moses' 'i am that i am', to john wayne's 'a man's gotta go what a man's gotta do'. it's a brief (one page), and humorous read.

the cover article from the sunday mag is entitled 'the war on contraception'. i read the intro, but don't have time to finish the article, let alone blog about it. look for a write-up late next week (after exams!!). see everyone tuesday, when i come out of my cave (read: the library).

clooney for __________.

2006-04-30T15:24:00.000-07:00

george clooney is making the rounds on political news shows and at popular protest rallies like a seasoned campaign veteran. my question is: what is clooney running for?

he's already been elected people magazine's sexiest man. and he locked up the vote for classiest-actor-ever at this year's oscars with his immaculately delivered acceptance speech about the history of hollywood progressivism. and when it seemed recently that clooney's popularity was peaking, and had nowhere to go but down, the public's adoration for him only continued to grow. the burden of proof has basically shifted to anyone who says clooney isn't the coolest guy in the milky way.

in the past week, clooney has been interviewed by wolf blitzer in the situation room, given a press conference with sens. obama and brownback, and featured prominently at a rally in front of the us capitol for increased intl involvement in darfur - not to mention probably dating a dozen beautiful women. i'll concede it's possible that clooney's ultimate goal is just to increase public awareness about the genocide in sudan. actors and other celebs are prone to taking up various public causes. immediately coming to mind are tim robbins and susan sarandon, bono, and... well, that's it, but i'm sure there are others. in this case, i'm not convinced clooney isn't opening the door for a future political career. he must be looking at arnold in california, and thinking, 'they elected that guy and he's not 1/10 as popular or handsome as me.' i already feel sorry for the avg-joe who has to run against clooney. that's a tough act to follow.

america, la bonita.

2006-04-28T11:52:00.000-07:00

president bush proclaimed today that america's natl anthem, the star-spangled banner, should be sung only in english. wow. the cnn.com story is here (i love the picture of bush - it looks like he's singing the anthem himself).

politicians are often accused of speaking out of both sides of their mouth; toeing the line on important issues; attempting to pander to both sides of a heated debate. such criticism is frequently justifiable, but often overblown in my opinion. it's the nature of politics for those who practice it not to be perceived as extreme. the us is largely a nation of centrists, any media portrayal otherwise aside (i know, it's a quote from west wing, but an accurate one i think). no politician could ever get elected if s/he did not get some votes from both sides of the aisle. as such, a bit of pandering and line-toeing in politics is acceptable; healthy even. but bush in this case has gone too far. he literally and figuratively has one foot on either side of the immigration debate fence.

first of all, people can sing whatever they want, whenever they want, in whatever language they want. people can stand on their heads on the sidewalk outside the white house, singing the anthem in pig latin, if that's their prerogative. any suggestion otherwise is offensive and irresponsible.

and furthermore, spanish language is an integral part of many aspects of american culture; one that should not be ignored, much less repudiated. turn on the radio. turn on the tv. eat in a restaurant. better yet, work in a restaurant. hire a nanny, or an in-home caretaker for your elderly relative. or just plain ask someone. spanish language is everywhere around us, rapidly integrating itself into all aspects of american society. my guess is it's only a matter of time before spanish language is required learning at all public schools, not to mention next to essential for proper functioning in most major cities. the increased prevalence of spanish language in the us is an unstoppable force, regardless of what anyone has to say or do about the current flux of illegal immigration.

bush would have you believe that by singing the natl anthem in spanish, immigrant protesters aim to demonstrate the differences between us. this may be the next 'mexican flag' issue at the may first immigration rally/protest/boycott. but singing the anthem in spanish is completely distinguishable from carrying a foreign flag. in truth, any singing of the anthem, whether in spanish, dutch, or chinese, should properly be viewed as recognition of our common ground as americans, from whatever corner of the globe we came, and whatever language we now speak. i for one, would love to hear protesters on may first sing the anthem proudly in their native languages. that's what makes america beautiful in the first place.

9/11 profiteering.

2006-04-28T07:58:00.000-07:00

starting tonight, all americans can join the passengers of flight 93 for the mere cost of a movie ticket. i listened to a discussion this morning on c-span's washington journal about whether it's 'too soon' for this movie to come out. some quick thoughts (about something other than the internal revenue code, which by the way is a fantastic read - let me tell you).

i think it's too soon. then again, i think any time would be too soon. with one possible exception. there's a big debate going on right now about funding for a memorial to the passengers of flight 93 in pennsylvania where the plane crashed. back in 2001, the federal govt agreed to pay half the cost of building the on-site memorial, with a contribution cap of about $7M. sounds reasonable. now the folks responsible for getting the thing done wanna spend $100M for a memorial spanning like 40 acres, and they want to fed govt to pony up half the dough. that's $50M - a whopping $43M more than the feds were looking to spend. many congresspeople were appropriately reluctant to authorize such an enormous payment, which response was obviously met by accusations of anti-americanism. if you don't want to pay $50M for a forty acre memorial in the middle of podunk, pa, then you're no patriot.

my suggestion. take the $$$ from the movie and use it pay for the memorial. no one should be taking a profit off this movie anyways. it's just wrong. especially considering they didn't even get any big actors to star in it, and it generally looks like they spent about 50 cents to a dollar on production. the makers knew full well that people would go see the film just the same because it's the first 9-11 flick to be released, regardless of how good the movie actually is. i mean, what person interested in seeing the movie is gonna be swayed by a bad review? no one. it's a cheap shot. plus, if the producers agreed to give all the profits to the pa memorial, they could charge like two-and-a-half times the normal admission and people would still go.

it's always too soon to take a profit off of people dying. making this movie is akin to war profiteering in my mind. so take the movie's earnings and donate them, in full, to building a pa memorial to the passengers of flight 93. that would kill two birds with one stone.

$100 and a mule.

2006-04-27T07:19:00.000-07:00

exams suck. there are so many good stories to blog about, and they're passing me by like so much sand in the hourglass. but alas, i couldn't resist a quick note about the new proposal by republican senators to send every single american taxpayer a $100 check to help offset the rising cost of gas.

i'm angry about the cost of grapes. can i have a govt check for 75 cents? is this any kind of solution? it strikes me as absurd that the wealthiest american, driving around in a hummer and sipping a goblet of 10w30, gets the same check as a lower-middle class american, driving around in a hybrid he can barely make payments on. the only appropriate way to do a repayment program like this is to give the money to people who need and/or deserve it. and that simply raises administrative costs to the point where we're spending more figuring out who gets the money than we are repaying those folks. point is, this is a ridiculous proposal and one that should be rejected out of hand. the fact that republicans are tying the repayment plan to an emergency appopriation bill for iraq/katrina relief, and including a provision for oil drilling in anwar, is absurd.

dems should be knocking the gas price issue out of the ballpark. it's almost redundant to say that republicans are tied to oil interests. republicans are oil interests. i'm not saying dems should be telling the nation they have all the answers. our dependence on oil is a complicated problem; one that has developed over many decades. but you can't possibly expect any progress when the govt is controlled by politicians entirely beholden to the oil companies. and seeing as there are only two political parties, that means...

and for goodness sakes. you people elected an oil tycoon, a modern-day-john-rockefeller, to the white house. what did you think was gonna happen to the price of gas? expecting george bush to get 'tough' on 'big oil' is akin to appointing bill gates to head up the ftc and looking for lower prices on your next copy of windows vista. don't hold your breath.

i am willing to put some of the blame on clinton for this. the federal govt allowed a rash of big oil company mergers in the late 90s, on clinton's watch. it strikes me that these mergers must make it easier for the remaining oil conglomerates to collude on supply and price. in hindsight (actually a lot of people had foresight on this), the govt could probably have stalled some of this mess by blocking all those mergers. exxon/mobil. bp/amoco. bp-amoco/arco. etc/etc.

in any event, no one is fooled by the $100 check. i mean, don't get me wrong. i'll take it. no risk of me sending mine back. but this is such an empty maneuver it's laughable. demand more now.

UPDATE: I just noticed in another article that the rebate check is not for every taxpayers. it's for single taxpayers with income less than $125k, and joint taxpayers with income under $150k. not as bad as i had previously thought. but foolish and unproductive, nonetheless.

huh?

2006-04-17T20:11:00.000-07:00

what happened to the panel discussion that was scheduled to air tonight after pbs' new documentary 'the armenian genocide'?

there are two possibilities: (1) it's running on some local pbs affiliates, but not weta, channel 26 here in dc; or (2) pbs opted not to air the panel at all after contoversy arose about the views of two of the panel members. i thought at first that perhaps there might have been a mistake; that there was never intended to be an actual panel. but the pbs website says the following:

Nevertheless, despite that recognition, PBS also went ahead and commissioned Oregon Public Broadcasting to produce a 25-minute panel discussion — which is already taped and scheduled to air immediately after the documentary — that includes two scholars who support the view implicit in the film's title, and two who question, among other things, the accuracy and use of the label "genocide." The panel discussion is called "The Armenian Genocide: Exploring the Issues." It is moderated by National Public Radio correspondent Scott Simon.

The New York Times quoted Lea Sloan, PBS's vice president for media relations, as saying the network "acknowledges and accepts that there was a genocide." But it ordered the panel discussion, she told the Times, to explore more deeply the question of why the Turkish government and its supporters continue to reject the genocide label. A PBS statement later added that "the specific intent is to examine the question of how historians can come to such radically divergent conclusions about these events. An important part of the mission of public television is to engender responsible discussion and illuminate complex issues."

if in fact pbs canceled the panel, and its decision was in any way influenced by members of the us govt acting on behalf of armenian lobbyists, then i think that is very troubling. i would be extremely interested to learn whether the letter j-pack referred to was ever sent; and if so, by whom. i don't have the time or energy now (exams!) to research the possible first amendment problems raised, but i will do so later if in fact i discover that such a letter was delivered.

i was glad the documentary itself was explicit in its affirmation of the genocide as a historical fact. it was especially interesting to learn that a yale law professor had the armenian tragedy specifically in mind when he coined the very term, 'genocide'. as a less than technical matter, it is certainly bold for turkey to deny that the very historical event for which the word genocide was created now does not fit the word's definition. apples are no longer apples. as a highly technical matter, the facts as presented in the documentary certainly seemed to me to deserve the genocide label, as it is laid out in the un convention.

the program did include commentary by at least two deniers of the armenian genocide, the chairman of the turkish historical society, and the turkish ambassador to the us. these two men, and all deniers, were presented as operating entirely at the fringe, and serving political and psychological goals far removed from fidelity to the study of history.

if anyone sees or hears anything related to the apparent cancellation of the controversial panel discussion, please point it out in the comments.

define scapegoat.

2006-04-17T12:06:00.000-07:00

i often find the democratic response to bush's weekly radio address to be poorly written and ineffectively delivered, sometimes bordering on offensively incompetent. but this week congresswoman hilda solis delivered an excellent response on immigration reform.

i didn't hear it (vegas!), but i read the transcript. i've highlighted the phrases i'll discuss.

Good morning. This is Congresswoman Hilda Solis from California. As hundreds of thousands of people took to the streets of America's cities for comprehensive immigration reform, all of us got to see the real human face of this vital issue.

The peaceful rallies all over the United States showed our country's great diversity, and showed that immigration affects not just Latinos, but also Asians, people from Africa, even the Irish. There was a wonderful coalition of Americans from every background who know that together, America can do better.

Many of those who marched were the children or relatives of immigrants, those who understand that immigration is both about our border security, as well as about family.

As hundreds of thousands waved American flags, recited the pledge of allegiance, and asked for a shot at the American Dream, it made me proud to be an American.
Like many of them, I am proof of the American dream.

My parents met and married here after moving from Mexico and Nicaragua and still live in the home that I was raised in. They instilled in my six siblings and me a deep sense of pride in our heritage, our country, and our community. We learned early on that with dedication, perseverance, and a good education, the American dream could be ours.

But we also learned that we have a stake in each other's future, and a responsibility for our neighbors' well being as much as our own.

Those values are not unique to my family, and they are not just Democratic values, they are American values.

The United States deserves realistic solutions to immigration, consistent with American values. That means reform is tough and smart - comprehensive, but also compassionate.

What America saw during the last few weeks did not happen overnight. The Republican Party set out to scapegoat immigrants in order to divide voters and win elections long ago, just as they did in the past elections on issues such as gay marriage.

Throughout the past year, the Republican Party has steadily built up its assault on immigrants. First, it was the Real ID measure that denied refugees a fair chance to seek asylum despite having been forced to flee their countries of origin.

And, in December, the same Republicans approved the House Republican Bill authored by Congressman Jim Sensenbrenner that would criminalize immigrants, families and even the clergy - making it illegal to offer communion to undocumented immigrants. The Sensenbrenner bill also would force local law enforcement to conduct racial profiling and require a wall be built along America's southern border.

Worst yet, Republicans passed these punitive and anti-immigrant measures after President Bush issued a 'Statement of Administration Policy' declaring his strong support for the bill.

In the last two weeks as the Senate considered immigration legislation, it was the Republican Party who stood in the way of comprehensive immigration reform that protects our borders, cracks down on employers who hire illegally and exploit workers, and brings millions of undocumented immigrants out of the shadows.

President Bush and Senator Frist lack real leadership to stop extremists in their party from trying to kill bi-partisan efforts for real, comprehensive reform.

The American people want change, not more of the same ineffective immigration proposals that scapegoat immigrants.

Democrats will continue to fight for that change, so that Americans get the tough and smart comprehensive immigration reform that they deserve.

I commend Democratic Senator Harry Reid for calling on Bill Frist to bring immigration reform to the floor of the Senate again as soon as Congress returns from recess.

Our hope is that Republicans, including the President, will finally show some leadership and help get the job done.

Republicans are not just alienating Latinos with their surrender to the far right, they're alienating Americans of every background who know that scapegoating any group of people is wrong.

And they're alienating every American who knows that we need real solutions to strengthen our borders, protect U.S. workers and their wages, and make it possible for immigrants who pay taxes and don't have trouble with the law to earn the opportunities and responsibilities of U.S. citizenship.

Together, America can do better.

This is Congresswoman Hilda Solis, thank you for listening.

there's that line, 'tough and smart', again. solis used it twice. i first noticed the phrase in 'real security', the democratic position paper on natl security. it's an excellent take - a concise idea voters can attach to, and an argument democrats can win. dems cannot win the immigration debate based solely on being tough. as solis accurately notes, republicans are willing to encarcerate their priests to deter illegal immigration - they think and speak only in terms of ends, and perceive no ethical constraints to the means.

solis drew attention to the republican attack on asylum-seekers, which i discussed here and here.

she noted that republicans' punitive plan offends not only latinos, but americans of every background. this is a nice retort to the outrageous suggestion (dobbs and cafferty!) that all the protesters were illegal mexican immigrants.

she criticized bush's support for the sensenbrenner plan (a fact i had not been aware of, and am somewhat surprised by).

she compared gay marriage as another example of republicans pandering to their bigoted constituents.

she even threw racial profiling in there. i'm pleasantly surprised a dem had the guts to raise this issue in the wake of the cynthia mckinney fallout.

i'm a bit confused by the multiple references to republicans 'scapegoating' immigrants. i can think of several possible meanings to this criticism, but i think solis left her particular message a bit unclear. that sucks because the scapegoating bit is what got reported here by cnn. how would you define scapegoat in this context?

reminder.

2006-04-17T11:17:00.000-07:00

here i am. back from vegas (at least in body, if not in spirit). one thing i'll say about the trip: there's nothing in the world like having best friends. respect to everyone who came. for those who didn't, we'll plan something out east before august.

i'm working on a few new posts, though time is of the essence with exams now peering over my shoulder. apologies up front for what promises to be a slow month here at 'tomorrowandprobably'.

in any event, i wanted to remind everyone to watch the documentary / panel discussion about the armenian genocide tonight on pbs (at 10pm on mpt). j-pack posted here on a controversy over two of the panelists, who deny a genocide took place. more info from pbs about the show is here. armenia is here on the map, east of turkey and nw of iran - i admit i could not have pointed it out. i'm looking forward to hearing the panelists' differing perspectives, and generally learning more about a significant historical event i (and i suspect most others) know frighteningly little about.

down a couple hundred, if you were wondering.

taot.

2006-04-12T09:54:00.000-07:00

oops. i forgot to give you a tuesday-afternoon-open-thread. my apologies to those who were dying to vent about something yesterday. a day late and dollar short...

get jack cafferty the hell off my cnn.

2006-04-11T11:56:00.000-07:00

i generally like cnn. in fact, i'm happy to get a lot of my internet and television news from them. they do good work. but i cannot understand why they continue to have jack cafferty, an absolute racist and loud-mouthed fool, on their station.

cafferty has his own cnn program, but also makes appearances on other shows, including the lou dobbs anti-immigrant show and wolf blitzer's situation room. now i don't like dobbs or blitzer, but i'm prepared to bite my tongue on their antics. cafferty yesterday crossed the line. here's an exchange between cafferty and blitzer that nearly had me in tears:

BLITZER: Let's check in with Jack Cafferty. He's standing by with "The Cafferty File" -- Jack.

JACK CAFFERTY, CNN ANCHOR: Yes, Wolf. Once again, the streets of our country were taken over today by people who don't belong here.

In the wake of Congress failing to pass immigration legislation last week, America's cities once again were clogged with protesters today. Taxpayers who have surrendered highways, parks, sidewalks and a lot of television news time on all these cable news networks to mobs of illegal aliens are not happy about it.

With every concession by the Bush administration, and the ever- growing demands of Mexican president Vicente Fox, America's illegal aliens are becoming ever bolder. March through our streets and demand your rights. Excuse me? You have no rights here, and that includes the right to tie up our towns and cities and block our streets. At some point this could all turn very violent as Americans become fed up with the failure of their government to address the most pressing domestic issue of our time.

Here's the question: What effect will the immigration protests have?

E-mail your thoughts to caffertyfile@CNN.com or go to CNN.com/caffertyfile -- Wolf.

BLITZER: A lot of these demonstrators, you know, Jack, are legal. And many of them are citizens of the United States. They're not all illegal immigrants, the people protesting.

CAFFERTY: How do you know?

BLITZER: Because I as out on the streets. I saw.

CAFFERTY: Well, where's the immigration service? Why don't they pull the buses up and start asking these people to show their green cards? And the ones that don't have them, put them on the buses and send them home. BLITZER: There's a -- well, that's an expensive proposition, as you know -- 12 million -- 12 million of them.

CAFFERTY: As opposed to the cost we're enduring by having 12 million of these people running around the country.

BLITZER: Jack, much more coming up. We have a debate. Lou Dobbs is standing by as well.

CAFFERTY: Yes.

BLITZER: Jack Cafferty, thank you very much.

how outrageous is that? cafferty suggested that every single person attending the rally, latino or not, is an illegal immigrant. cafferty blamed the rally, and america's immigration problems, on vicente fox. cafferty threatened immigrants with violence if they don't shut up. and cafferty tells the ins to go to the rally and start checking green cards. yes, jack, arresting people at enormous protest rallies is a great idea. it's worked so well for the us govt in the past. why even bother asking for green cards? if they're all 'illegals' anyway, why not just firehose them all the way back to mexico?

i know that cafferty, despite his conservative tendencies, is often described as a maverick. he did go on a pretty awesome rant about bush and fema during hurricane katrina. but that will only take you so far. yesterday's bigoted spiel was too much. it's time for cafferty to go. he has no place on a legitimate news station... if cnn purports to still be one.

in perpetuity es sanctum.

2006-04-11T10:08:00.000-07:00

here is a very interesting article about a catholic church's attempt to guarantee that no abortions will ever be performed on land it currently owns, but intends to sell.

st mary's catholic church owns a tract of land in potsdam, new york, which it intends to sell. a local potsdam hospital wants to buy the land to build a new full-service medical facility. but the hospital walked away from negotiations when the church demanded that a clause be written into the deed providing that no abortions be performed on the land.

can the church do this? what about shelley v kraemer? i've mentioned the classic supreme court case multiple times. at one point i even promised a full post on it, which i have yet to follow through on. i'll say a bit more here.

in shelley, a black family bought a house in an all white neighborhood. racist neighbors sought to have the sale revoked based on a restrictive covenant written into the property's deed. the covenant required that the land not be sold to colored folks. state courts enforced the covenant to rescind the sale, but the us supreme court reversed. the court held that state enforcement of the covenant constituted state action, subject to the constitutional requirement of equal protection. the court rejected the previously adhered-to notion that mere enforcement of the common law of property, which required the sale's rescission, did not constitute state action. this was absolutely huge because it brought private contracts, i.e. racially-discriminatory covenants in property deeds, within the realm of constitutional scrutiny. no more all white neighborhoods.

similarly, state enforcement of the church's no-abortion covenant would also constitute state action, subject to the constitutional right to choose under roe and casey. the state cannot ban abortion on a tract of land, just as it cannot prohibit black people from buying the tract, even when the state's only action is to enforce private contracts. any thoughts?

i love shelley. it makes so many crappy ideas unconstitutional.

let's make a deal.

2006-04-08T08:03:00.000-07:00

the us senate closed up shop friday for a two week recess without reaching a compromise on immigration reform. the republican blame game is in full swing, with president bush at the helm. the cnn story is here.

a brief review of the facts (also see j-pack's previous review here). the us house last december passed an enforcement-only bill - we would've have to build an entire complex of new federal petitentiaries to lock up the immigrants and employers who would be imprisoned as a result of the bill, which included no opportunity to any illegal immigrants to stay in the country. then, the senate judiciary committee voted up a comprehensive package that beefs up border security but also allows undocumented workers to stay in the us and eventually gain citizenship if they (1) pay $2000 fine, (2) pay all back taxes (i'm still curious what the govt will do will folks who paid taxes with phony soc sec numbers), (3) learn english, (4) pass a criminal background check, and (5) are determined to pose no threat to national security. republicans and the prison guards' union criticized the sjc bill as 'amnesty'.

bill frist, who had originally opposed any sort of amnesty or guest worker program, agreed to negotiate. tough negotiations led to a compromise, dubbed the 'roots' program. if an immigrant has been here five years, then s/he can stay and eventually gain citizenship. if s/he's been here between two and five years, then s/he has to go home but s/he can basically come right back and gain citizenship (negotations yield strange results sometimes, don't they?). if s/he's been here less than two years, then no change from your current status, illegal. at a press conference thursday, frist and minority leader harry reid announced that compromise had been struck, and the senate was going to pass something. i'm glad i took a healthy dose of pessimism before the press conference, because the compromise fell apart about forty five seconds later.

the most outspoken anti-latino republicans demanded the opportunity to present amendments to the compromise bill for vote on the senate floor. democrats refused, fearing that these new amendments would allow the joint house/senate conference on the bill to undo everything. so dems put the bill up for cloture vote on friday morning. 38 of 44 dems voted yea, and every republican voted nea (j-pack can correct me if my numbers are a bit off). democrats, particularly harry reid, firmly opposed any new compromise that included the republicans' amendments.

republicans, led by bush in his weekly radio addressed, accused reid and dems of stalling the legislative process. i'm not sure that's an accurate representation of what transpired in the senate. we've seen recently how republicans like reasoning from tautology; well i prefer reasoning from analogy. i saw john kerry on meet the press this morning talking about the senate debacle. consider the following hypothetical exchange between kerry and mtp host tim russert:

russert: top o' the mornin' to ya johnny-boy.
kerry: great to be here timmy, old buddy old pal.
r: great to have you.
k: by the way timmy, that's a great green and blue striped tie you've got on.
r: thanks john, i wear it every time you're on the show.
k: that's because you wear it every week.
r: you got me there, john.
k: say timmy, i'll give you thirty bucks for that tie.
r: thirty bucks? no way, this tie is carolina herrera. how about forty five dollars?
k: thirty five.
r: forty two.
k: thirty six.
r: forty dollars and seventy five cents.
[two days later...]
k: thirty seven dollars and fifty cents.
r: thirty seven dollars and fifty cents, payable in commemorative texas quarters and you've got yourself a deal.
k: deal.
r: deal. say john, let's hold a press conference to tell everyone we've reached a compromise.
k: great idea timmy.
[after the press conference...]
r: say john, i don't like a our deal anymore.
k: too bad. we had a deal.
r: i know, but i wanna make a small change - make it thirty seven fifty payable in texas quarters, plus you give me the shirt off your back.
k: the shirt off my back? are you crazy? if you take the shirt off my back, then what am i gonna do with your tie?
r: i don't care. give me the shirt or no deal.
k: no deal then.
r: you stalled the process.
k: i didn't stall the process. we had a deal and you tried to change it so it wasn't a good deal for me anymore.
r: no i didn't. you stalled the process.

see the analogy?

tortured logic.

2006-04-07T15:02:00.000-07:00

over the past five years, bush et al have tortured everyone and everything they can get their hands on. it was only a matter of time before they came after logic.

the white house explained today why bush did not flip-flop his position on leaking classified info to reporters. in a sense, albeit one that makes a person of sound mind grimace, this is correct. you see, the executive branch [read: bush] determines what info is classified in the first place. and there used to be a process for declassifying classified info, which had to be followed even at the highest levels. but a couple years ago, bush ruled by executive order that he and 'buckshot' cheney don't have to follow that process. they can declassify whatever they want whenever they want. hell, they can declassify info that wasn't even classified in the first place. they can declassify stuff that isn't even info. bush says he and cheney can declassify your mom if they want. what are you gonna do? what?

so, it's essentially a logical impossibility for bush to 'leak' classified info. he has only to declassify it first, which he can do on a whim, as he sees fit, and no one can stop him down. in that sense, it's correct that he did not flip-flop. other people should not leak classified info, but he can do what he wants.

[picture me stabbing myself in the stomach]

oh the pain. it hurts so bad. make it stop. please mr pres.

talk about getting off on a technicality. what a crap definition of 'leak'. bush declassified natl security intel to get it to the natl media for political purposes - to bolster his failing defense of the iraq war, which has only proven more failing since. that he can (by his own executive order) declassify any info he wants is largely irrelevant. he did exactly what he lambasted others for doing - not to mention threatened with criminal investigation. he took classified natl security info and gave it to reporters for political purposes.

first they came for the poor, and i said nothing. then they came for the arabs, and i said nothing. then they came for logic, and i said nothing.

Should denying genocide be illegal?

2006-04-07T14:08:00.001-07:00

I work for a Member of Congress from the Los Angeles area. Her Congressional district is largely Hispanic – over 70%, one of the largest Hispanic concentrations in the country - but there are a few other ethnic communities intertwined amongst the 640.000 constituents comprising her district. One of these communities is a thriving Armenian-American community. Our office meets regularly with the groups representing Armenian-American interests, and in a recent meeting something interesting happened.

PBS is airing a documentary on the Armenian genocide later this month. The Armenian-American community is obviously delighted that PBS has chosen to show an hour-long, independently produced documentary, simply titled The Armenian Genocide, one week before the annual ‘Armenian Remembrance Day’ is marked in the U.S. But they are very far from enthusiastic about the fact that PBS will air a 25-minute panel discussion immediately following the documentary, which includes two scholars who support the view implicit in the film's title, and two who question, among other things, the accuracy and use of the label ‘genocide’. Armenian groups have likened this step to airing a statement by neo-nazi Holocaust deniers immediately after showing Shindler’s List.

PBS officials, responding to critique in a statement, said they “accepted The Armenian Genocide for the schedule based on its merits and because the information it presents is an important part of recent world history”. Implicit in PBS's decision to accept the film for distribution, the statement says, is PBS's “recognition that the overwhelming majority of historians have concluded that a genocide took place”.

The Armenian genocide, conducted during the rule of the ‘Young Turks’ of the Ottoman Empire as World War I engulfed Europe, leaving upwards of a million or more Armenians dead, has never been officially recognized by Turkey. This has lead to tensions between Armenia and Turkey for centuries. In explaining its motivation for the inclusion of the genocide-deniers on the panel debate, network officials stated that the network "acknowledges and accepts that there was a genocide." But it ordered the panel discussion to explore more deeply the question of why the Turkish government and its supporters continue to reject the genocide label. A PBS statement later added that "the specific intent is to examine the question of how historians can come to such radically divergent conclusions about these events. An important part of the mission of public television is to engender responsible discussion and illuminate complex issues."

The two historians questioning the Armenian genocide are, not surprisingly, of Turkish descent. Not only do Turkish historians come to radically divergent conclusions than their colleagues abroad - they pretty much have to. Turkey law states that "A person who explicitly insults being a Turk, the Republic or Turkish Grand National Assembly, shall be imposed to a penalty of imprisonment". This law has been used, for example, to bring charges against writer Orhan Pamuk in 2005 for stating that "Thirty thousand Kurds and a million Armenians were killed in these lands and nobody but me dares to talk about it".

So, back to our meeting a few weeks ago. Our Armenian friends ask us if the Congresswoman would be so kind as to sign on to a letter from some Members of Congress (all of which have sizable Armenian constituent groups in their districts) to PBS, requesting that they refrain from airing the panel discussion with the genocide-denying Turkish historians. In my opinion, this is the point where the meeting takes a turn into a philosophical hornet’s nest. This request collides with the question of free speech and the responsibilities that accompany that freedom. It is troublesome for a Member of Congress to ask a public broadcasting network to take something off the air because it displeases constituent group x, y or z.

My boss didn’t sign the letter. We will continue to work with our Armenian friends to fight for recognition of the genocide, but not by silencing the deniers. The PBS debate represents an opportunity for Armenian academics to present their evidence and arguments to a broad audience. I am convinced that it is better to flesh out the deniers’ arguments and refute them one by one, despite the fact that genocide-denial is obviously an extremely hurtful phenomenon to people who’s lives or ancestor’s lives have been affected. But the more people witness the refuting of false arguments, the better. Silencing deniers does not make their arguments go away. Criminalizing deniers makes martyrs of those who are prosecuted, such as the deranged British historian David Irving, who was recently sentenced to three years imprisonment in Austria for Holocaust denial. Presenting credible, consistent arguments in response to historical revisionism has a stronger potential to prevent others from repeating the lies than silencing them by law.

Free speech is a condition of legitimate government. If one supports Orhan Pamuk’s right to speak about the Armenian genocide in Turkey, then one is forced to support genocide deniers right to oppose it elsewhere. Curtailing the rights of those who speak untruthfully about the genocide in the US or elsewhere will be used as a lever to curtail the rights of those who speak truthfully about it in Turkey. If we expect deniers, racists and bigots to accept the verdict of the majority once the majority has spoken, then we must permit them to express their denial, racism and bigotry in the process whose verdict we ask them to accept.

I’ll be watching the documentary and the panel discussion on PBS April 17. I urge everyone else to do the same.

187 on a [bleep] 527.

2006-04-07T09:44:00.000-07:00

a cat stuck in a tree would probably get more msm coverage than the 527 reform act. even the blogosphere is pretty quiet on it. strange, considering the impacted groups are supposed to be leaders of the grassroots get-out-the-vote movement. it makes you wonder how good they are at their job.

in any event, the alliance for justice does have some interesting commentary on the bill, including this opposition letter to reps tuesday, as well as this fact sheet on 527s and how they would be affected. anyone interested in campaign finance reform should check out the afj site. it's incredibly informative, and much more readable than my attempt here to discuss the possible constitutional implications of the new bill.

in any event, the bill is headed to the senate. maybe the political orgs are just saving their energy for a nastier fight there. after all, if you wanna make sure nothing gets done, the senate is the place to do it... err, not do it. whatever.

champagne campaign.

2006-04-06T11:58:00.000-07:00

the house yesterday narrowly passed 'the 527 reform act', or hr 513, to bring so-called '527 political organizations' under the regulatory guidelines of the federal election commission (fec). the vote split almost entirely along party lines; republicans yea, democrats nay. i'm hardly an expert on campaign finance law, but i'll take a stab.

'soft money' versus 'hard money'

organizations involved in political campaigns get hard money and soft money. hard money is small individual donations; soft money is large individual donations. soft money is usually an individual donation over $25,000.

'political committees' versus 'political organizations'

political committees are organizations (1) under the control of a federal candidate, or (2) with the 'major purpose' of expressly advocating for or against the election of particular federal candidates. the fec regulates political committees; most significantly prohibiting political committees from using 'soft money' for candidate-specific advocacy.

political organizations, or 527s (referring to the provision of the federal tax code that provides their exempt status), are also involved in political campaigns. however, political organizations do not advocate for or against particular candidates, and thus are not subject to fec regulations. they may advocate for or against specific issues; or for voting generally; but not for or against particular candidates. were a 527 to advocate for or against a particular candidate, it would immediately become a political committee, subject to fec regulations.

political committees and the 'first amendment'

the supreme court in buckley said the first amendment allows the fec to prohibit soft money contributions to political committees, but not to outside political organizations.

fec regulation of 527s

republicans say 527s disproportionately benefit democrats. they argue 527s are abusing the lack of regulatory scrutiny to use soft money for candidate-specific advocacy. so, they want the fec to prohibit 527s from accepting soft money. hr 513 is designed to effectuate this goal; it amends the fec act to define 527s as political committees subject to fec regulations. then, the bill exempts some 527s from those regulations. [note: the sponsors of hr 513 tried to accomplish this same result by suing the fec to force it to redefine political committees to include the 527s it does not like. the district court decision punting the case is here.]

the problem is, if a 527's 'major purpose' is not to advocate for or against particular federal candidates, then the first amendment requires that it be allowed to accept soft money contributions. the question then, is whether all 527s with major purposes other than candidate-specific advocacy are encompassed within 513's exceptions to the general rule that 527s are political committees.

i realize this is all quite a mouthful. having arrived at the key constitutional question, i won't go through hr 513's exceptions now. but keep in mind, 513 violates the first amendment if it prohibits soft money contributions to outside political organizations with major purposes other than candidate-specific advocacy.

thanks for joining me on my champagne campaign. come again.

pardon me.

2006-04-04T13:09:00.000-07:00

as contraversy swells in the senate over competing proposals for immigration reform, language in the debate evolves and becomes more and more misleading. now i'm confused. what is amnesty again?

some background. there are two proposals currently before the senate. first, enforcement-only reform, the sensenbrenner/frist approach. build a fence along the mexican border; harsh criminal penalties for employers who hire undocumented workers; makes illegal immigrant status a felony punishable by up to five years in federal prison. second, comprehensive reform, the mccain/kennedy approach. illegal immigrants can apply for green cards after they pay a $2000 fine, plus all their back taxes, learn english, pass a criminal background check, and are determined to pose no threat to national security.

proponents of enforcement-only are now criticizing comprehensive reform as 'amnesty'. i don't think it's amnesty in the typical sense, but let's check to be sure. as usual, wikipedia has a thoughtful analysis:

Amnesty (from the Greek amnestia, oblivion) is an act of justice by which the supreme power in a state restores those who may have been guilty of any offence against it to the position of innocent persons. It includes more than pardon, in as much as it obliterates all legal remembrance of the offence.

ok, this is how i typically think of amnesty, and the comprehensive reform proposal clearly does not fit. it does not restore illegal immigrants to 'the position of innocent persons,' or 'obliterate all legal remembrance of the offense.' those individuals are required to pay the fine, the back taxes, learn english, and undergo the background check and natl security threat determination. innocent persons do not have to do these things. wikipedia draws attention to an illustrative analogy:

The term amnesty is also used to describe any initiative where individuals are encouraged to turn over illicit items to the authorities, on the understanding that they will not be prosecuted for having been in possession of those items. A common use of such amnesties, is to reduce the number of firearms or other weapons in circulation.

in the case of illegal immigrants, the 'illicit item' in question is the immigrant him/erself. again, the comprehensive reform proposal does not fit. those who come forward with unlicensed firearms are not identified, or subject to any penalty. by contrast, immigrants who come forward are identified, and punished in the form of the fine, etc. the punishment is simply reduced from what it would otherwise have been (deportation). this brings us to wikipedia's final comment on 'amnesty':

Amnesty is sometimes now the term used to denote cases of pardon by a country where offenses are not stricken from the record and individuals proclaimed innocent. Instead, those individuals receive some lesser sentence in response to an admission of guilt.

the comprehensive reform proposal probably fits this altered definition of amnesty. immigrants who come forward to admit guilt receive a lesser sentence than they otherwise would have ($2000 fine, etc versus deportation). and this definition of amnesty fits very nicely with the enforcement-only agenda. they want nothing short of getting these folks the hell out of the country. and as unreasonable a proposal as this seems, they are sticking to it like white on frist.... err, rice.

so pardon me, i guess i was mistaken about amnesty.

profil'd.

2006-04-04T11:43:00.000-07:00

i'm writing this post to pitch my idea for a new tv show about the us capitol police. it's gonna be great, i promise. i've even got a catchy name for the new show: profil'd. intriguing, huh?

remember that episode of punk'd when bouncers at a los angeles club won't let alan iverson into his own birthday party? they tell him to wait outside because the president's daughter is inside with the secret service. a-i is just about to bang heads together when ashton kutcher runs out with the camera crew. everyone laughs; a-i looks pissed; a-k jumps around like a fool. it's great. well, something similar happened last week at the us capitol, except this time it wasn't a prank. the cnn.com story is here.

there are metal detectors at several locations in the capitol, but members of congress wear pins that allow them to bypass the detectors (perhaps j-pack can explain these details further in the comments). on wednsday, cynthia mckinney, an african american democratic congresswoman from georgia, was not wearing her pin. when she bypassed a metal detector, the capitol police officer on duty stopped her. he says he didn't recognize her as a member.

the facts from this point are blurry. the officer 'touched' or 'grabbed' mckinney when she passed the detector, and in response she 'struck' or 'touched' the officer. the capitol police submitted their report yesterday, and the us attorney's office will now decide whether to file criminal charges against mckinney, and seek a warrant for her arrest.

criminal charges? arrest warrant? are you serious? this woman is a freaking congresswoman. i know elected officials are not above the law, but let's be reasonable about this. is anything here worthy of criminal penalty? i'd like a few more facts before i decide who was in the wrong, but i think it's a bit exaggerated to throw the word 'criminal' into the mix.

mckinney suggests the incident is the result of racial profiling, and i tend to agree. there are a lot of members, so at first blush it's understandable that officers may not recognize them all. but mckinney points out that teenagers working as pages are required to recognize every member by face and name, so officers could probably do the same. in addition, there are only fourteen african american members, and even fewer female african american members. this seriously undercuts the officer's contention he did not recognize mckinney's face. it's not like she's one of a thousand grey-haired white men wearing grey suits in congress; she's probably one of like six black women. plus her hair is not grey and, typically, neither is her dress. my point is, she shouldn't be difficult to recognize (unless you think 'they' all look alike, in which case...). furthermore, mckinney notes that members use lapel pins, not photo ids, to bypass detectors in the capitol, so officers should be able to recognize members' faces for additional security.

cynthia mckinney, you got profil'd! tune in next week to watch officers throw barak obama out of the us capitol gift shop.

taot.

2006-04-04T11:34:00.000-07:00

i know, i know. i haven't posted anything for the past few days. it happens. it's a bad combination of blogger's block and being busy with other stuff. but don't let my negligence stop you from airing your grievances here in the tuesday-afternoon-open-thread.

fire away. what's on your mind?

free deliverance.

2006-03-31T10:46:00.000-08:00

a quick update on ave maria, florida. today's chicago tribune story is here. i blogged about the proposed all-catholic town here and here. p-dub blogged it here.

the aclu pointed out some constitutional problems with thomas monaghan's stated intent to prohibit the sale of contraceptives and sexualized tv programming in town. monaghan responded by mounting a national publicity campaign to clarify that he will only ask, not force, businesses in ave maria to abstain from sinning. getting warmer.

today's story, as well as previous news accounts, are predictably thin on specific constitutional analysis. has anyone seen a legitimate legal response to the ave maria idea? if so, please provide a link in the comments.

the hypocritical oath.

2006-03-30T12:04:00.000-08:00

conservatives in the maryland senate yesterday narrowly defeated a bill to allow pharmacists to dispense emergency contraception, aka plan b, aka morning-after pill, without a doctor's prescription. the article is here.

i have many thoughts on this issue, but i won't discuss them all here. right now i want to identify one interesting statement quoted in the article. after hearing the outcome of the vote, julie varner, maryland catholic conference's associate director for social concerns, commented:

The legislation is harmful because it takes the doctor out of the equation of making important health decisions for women and girls.

are you kidding me? isn't the pro-life movement all about taking important health decisions for women and girls out of the hands of their doctors? isn't that their stated goal exactly? don't they want male-dominated legislatures, not doctors, to make the important health decision of whether a woman or girl will bear a child? so what gives?

is there anything more hypocritical than a staunch pro-life catholic criticizing legislation for taking a doctor's input out of a woman's decision about her health?

safer already.

2006-03-29T12:22:00.000-08:00

democrats in congress today released 'real security,' a position paper on natl security. this sort of campaigning is of great interest to me - see my thoughts here and here on a more comprehensive democratic position paper. now, some thoughts on 'real security,' which you can read in full here.

the presentation is simple and classy. of course it's all rw&b, with the small exception of the gold star on the cover. there's nothing gaudy or in-your-face about the layout. the document's content is intended to speak for itself.

i like the title, which reads in full, 'real security: the democratic plan to protect america and restore our leadership in the world.' democrats probably can't win a fight over pure natl security; there's a justifiable sense that republicans will do absolutely anything to ensure americans' safety, whereas democrats probably face some self-imposed limitations (be they constitutional, statutory, or just ethical). but democrats can win on the issue of restoring our intl credibility. most americans' probably believe our standing among the intl community has suffered under republican leadership. democrats were smart to make this a natl security issue.

the introductory page is well-written. there's plenty of praise for us troops and vets, along with promises they will be taken care of. the third paragraph carefully notes that we need natl security policies 'that are both tough and smart.' again, democrats probably can't win on just being tough, but they can win on being smart. after the last few years, a political party of stupid monkeys might beat republicans on the smartness issue. i'm disappointed that the hurr katrina screwup is not mentioned until the sixth paragraph. the seventh paragraph smashes republicans on iraq - manipulated (not just bad) intelligence, corrupt no-bid contracting to friends, oil motives. all great.

the substantive proposals raise more questions. they're presented in broad statements of policy, rather than concrete legislative acts (i believe this was one of the keys to the success of the 'contract with america'). republicans will inevitably, and perhaps justifiably, criticize the form as vague. a few quick points. 1) strengthen the natl guard. this should draw support for governors across the country, who are crying for relief on this issue. 2) eliminate osama bin laden. without specifics, i wonder whether anyone believes democrats could do this where republicans couldn't. 3) 'redouble efforts' to stop iran and nkorea from getting nukes. again, it's just so vague -do they mean negotiate? attack? pray? 4) screen 100% of containers and cargo bound for the us?!?! get ready for a major tax hike to fund that one. as i understand it, the costs are virtually prohibitive. 5) responsible redeployment of us troops in iraq in 2006. this is extremely vague, which only fuels republicans' criticism that dems are not united on an iraq policy. redeployment sounds most like the john murtha position, which to me is promising. 6) hold bush administration accountable for all the screwups. no-brainer. 7) develop alternative sources of oil. that west wing episode did this issue no favor by making it seem virtually impossible. remember the various energy interests fighting in the conference room for josh's approval? what a mess.

in any event, i'm curious to hear others' reactions. i don't know about you, but i feel safer already.

referendum.

2006-03-29T08:11:00.000-08:00

i'm hardly an expert on israeli politics. that said, i have some thoughts on the kadima victory in yesterday's parliamentary elections.

kadima is the recently-created centrist party of ariel sharon, and the party of acting prime minister ehud olmert. kadima ran on a platform of unilateral withdraw from gaza settlements, and future negotiations with palestinian leadership toward a two-state solution (i believe conditioned on certain concessions by hamas). likud, benjamin netanyahu's pro-israeli-security-anti-withdrawal-anti-negotiations party, finished fourth in voting. in light of intl uproar over hamas' victory in the recent palestinian election, it seemed at least possible that more israeli voters would be drawn to a party like likud. so although kadima may not have won as many seats as they expected or hoped, i think its mere victory demonstrates popular opposition to a reactionary stance against the new palestinian govt.

i've said since the palestinian election that participation in democratic govt will have a moderating affect on hamas' more extreme positions. alienating the intl community would jeopardize hamas' ability to govern effectively, a risk i don't believe the party will take in the long run. i would now suggest kadima's victory demonstrates that israeli voters have similar hopes.

i'm sure many readers have superior insight into the significance of the election results, and vast knowledge of the issues generally. please share these in your comments.

was the election a referendum? on what exactly? what was the result?

like a black fly.

2006-03-28T12:00:00.000-08:00

hundreds of thousands of frenchmen were hard at work today protesting a new law that would... well, it would make them work hard. at least if they want to keep their jobs. the cnn.com story is here.

french law currently imposes significant costs on employers who want to fire their workers, which creates a disincentive to hire new workers in the first place. this is especially true with respect to young workers, 23% of whom are currently unemployed. according to cnn, the new law would allow french employers to fire workers under 26 years of age for any reason during their first two years of employment. i assume the 'any reason' standard is subject to normal anti-discrimination restrictions (though perhaps not seeing as it is france we're talking about).

apparently the french masses disapprove, because they took to the streets in hordes, blocking city traffic and shutting down public transportation systems. my advice would be to divert some of that hard work and enthusiasm to doing their jobs. then maybe they wouldn't be so worried about getting canned. but hey, what do i know?

isn't it ironic. don't ya think.

taot.

2006-03-28T10:30:00.000-08:00

'tomorrow and probably' just had its 1000th visitor!!! thanks to all the loyal readers, and especially the frequent commenters who keep the conversations here interesting and lively.

in honor of those who read, i hereby promulgate a new 'tomorrow and probably' tradition, the 'tuesday afternoon open thread' (toat). feel free to comment on whatever's on your mind; an interesting article, a great book, a favorite song, a new movie, something that makes you mad, or happy, or whatever. hopefully this will be a chance for more passive readers to come out of their shells. please be sure to keep it pg.

thanks again. keep reading.

arithmetic.

2006-03-27T13:01:00.000-08:00

by now everyone is familiar with the debate over how to characterize the current level of carnage in iraq. is it full-blown civil war or the lesser-included offense of sectarian violence? let's crunch some numbers to see what we think.

i just read this cnn.com article about various incidents that took place in iraq today and over the weekend. there is no telling how complete this survey is, but i would argue it can only understate the violence that took place. based solely on the information presented in the article, i calculate that in the last 48 hours in iraq there are:

125 dead.
90 wounded.
16 kidnapped.

those numbers aren't much different from other recent reports. the general consensus seems to be 50-60 deaths per day. a reasonable person could make the case that this is not civil war. but let's do a little more math. one year at this level of violence in iraq will leave:

22812 dead.
16425 wounded.
2920 kidnapped.

it sounds a lot worse when you say it like that. if you're gonna argue that 50-60 deaths per day is not civil war, i think you have to also argue that this level of violence will not last long. but i see no signs that the current incidence of violence in iraq is diminishing or even leveling off. i don't even hear the bush administration saying this to be the case. i only hear a bald assertion that current levels of violence do not amount to civil war. without any indication that the violence is or will soon start tapering off, can this be accurate?

i'd be curious to learn how many people have died since the mosque bombing. has anyone seen that number?

bias.

2006-03-26T18:32:00.000-08:00

no, i'm not talking about that bias. i'm talking about the bias that prevents you from making fair and impartial decisions. the bias that should force justice scalia to recuse himself from next week's gitmo detainee case, but probably just guarantees how he'll vote. the story is here.

some brief background. gitmo detainees who claim they're not 'enemy combatants' currently get a hearing before a military tribunal. but the supreme court will hear arguments next week to decide whether the constitution requires that detainees be afforded a trial in federal court. scalia commented on this exact issue last week in switzerland. from cnn.com:

War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. Give me a break. . . . If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy.

first. note the clever tautological reasoning in scalia's rant. 1) gitmo detainees should not get trials because war is war. 2) he should stay captured because he was captured. i absolutely love it.

second. a substantive comment on 'war is war.' sounds reasonable, yes? but don't bush et al frequently justify intrusive govt conduct by saying the war on terrorism is different than other wars. put the two arguments together and you get: 1) americans must sacrifice their traditional rights because the war on terrorism is different than previous wars, and 2) detainees have no rights because the war on terrorism is the same as previous wars. notice that no one ends up with any rights.

third. a procedural comment on recusal. it is axiomatic that judges and justices must keep an open mind to all cases and arguments that come before them. a justice should not sit in judgment on a case where s/he has publicly expressed a substantive opinion of what the outcome of the case should be. hence the process of recusal. scalia publicly stated how he believes the gitmo case should be decided. he also explained that his decision is informed by his son's purported involvement in the underlying facts. either of these statements should be enough to guarantee scalia's recusal. the two together overwhelmingly compel it. if scalia has any fidelity to the principles of judicial openmindedness and impartiality, he should recuse himself. but he doesn't and he won't. he'll hear the case, and he'll vote against the gitmo detainee. that's not a promise or a threat. it's a fact.

finally. a factual dispute with scalia. your son was on 'that battlefield'? which battlefield? 'they' shot at your son? which they? scalia's son apparently served with the us army in iraq. the gitmo detainee at issue in next week's case is salin hamdan, alleged bin laden chauffeur, who was captured in afghanistan in 2001, some two years before the iraq war started. so what is scalia talking about 'they' shot at his son on 'that battlefield'? is the war on terror so expansive that a man captured in afghanistan in 2001 is now an enemy combatant in the iraq war? how can a person be an enemy in a war that has not started? could i be an enemy combatant now in some hypothetical future bush war? i think that's logically impossible, but i fear neither bush nor scalia cares. so, scalia - wrong battefield, wrong they.

loved you, lenny. i mean that. loved.

win.

2006-03-26T18:04:00.000-08:00

i discussed here the idea of a democratic 'contract with america' for the federal elections in november. i still think this is something democrats should absolutely do. here's my idea for a campaign title:

Restoring Checks and Balances in 2008

this would be the title of a short document describing democrats' central legislative proposals (just like the contract with america), and the theme of their entire 08 campaign. preliminary thoughts? good? bad? what comes to mind when you hear it? what legislative proposals could easily follow?

could this be a winner?

jinx.

2006-03-26T15:44:00.000-08:00

i warned soze about putting off a good post - storing an idea in the backlog of 'saved as drafts.' those chickens came home to roost today when i read this nytimes piece about the use of language in the immigration debate. i first noted the issue here. fortunately, the times did not steal all my ideas.

the immigration debate does not break down along traditional party lines. some democrats want to build a fence along the mexican border; some republicans favor amnesty for the current generation of undocumented workers. recognizing the prevalence of partyline-crossers in the border-crosser discussion, i'll refer to supporters of sensenbrenner/frist enforement-only legislation as 'nativists'; adherents of comprehensive guestworker/amnesty legislation i'll style 'reformists.'

i see nativists utilizing two clever tactics to garner support for their punitive proposals. first. they conflate the two groups of persons crossing our borders unlawfully: 1) terrorists and 2) folks seeking better jobs than are available in their countries. nativists actively give the impression that one is the other, or that all 'illegal aliens' are both. the times article notes that some nativist groups simply call all undocumented foreigners, 'terrorists.' in less subtle fashion, sensenbrenner titles his legislation, 'the border protection, antiterrorism, and illegal immigration control act of 2005.' i'm currently proposing a bill called 'the antiterrorism, idowhatiwantpaysnotaxes, and national security act of 2006.' oppose it and you're no patriot.

second. nativists frame the immigration discussion in terms of us and them, americans and 'others.' this helps nativists access many americans' racist and prejudicial animosity toward latinos. watch lou dobbs' show on cnn to see how this is done.

to win the debate, reformists need to separate out and label the different aspects of immigration policy. what does national security justify? what has nothing to do with national security? what is just downright racism? what are our ultimate goals?

consider the repercussions of imprisoning thousands, potentially millions, of productive american workers (yes, they're american - not because they have a passport or social security number, but because they work and live in america). i can see some headlines now:

incensed-enbrenner : congressman screams 'these dishes are filthy' after favorite restaurant's undocumented kitchenstaff imprisoned.

frists of fury : work on senator's new family home halts after undocumented construction team imprisoned.

dobbs away! : host quits popular cnn show after his kids' undocumented nanny, his elderly parents' undocumented caretaker, and his undocumented cleaning lady all imprisoned.

i shouldn't have been so harsh on soze for complaining about wasting a good idea by putting off finishing his post. i only jinxed myself.

Responsive to Stimuli?

2006-03-24T19:08:00.000-08:00

The US Senate is scheduled to consider immigration reform next week, and the stage seems to be set for a real showdown.

The House passed a horrible immigration bill last December, James Sensenbrenner’s ‘Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005’, also known as HR 4437 or simply ‘the Sensenbrenner bill’. The bill was introduced, reported from the Judiciary Committee and from the full House in 10 days flat. 239 for, 182 against. Notably, 36 Dems voted for, 17 GOPs voted against and 13 Members didn’t vote for whatever reason. If the Dems could have kept their troops together – something they have otherwise been remarkably good at in the 109th Congress – they would have struck down the bill by about 15 votes. But they didn’t.

The Sensenbrenner bill is a real piece of crapola. Allow me to list some of the ways:

• First of all, it is an enforcement-only bill. No guest-worker provisions, not even temporary work visas for agricultural workers, are to be found anywhere in the bill (‘cause we all know how well an enforcement-only strategy is going to work. That’s exactly the right way to get undocumented immigrants out of the shadows and deter new ones from seeking the US labor market. Right on. Can’t go wrong. Great way to spend tax-dollars).
• Unlawful presence in the US would become a criminal offense, instead of the civil offense that it currently is (Yay - more folks to fill up all that empty jail space).
• All employers would be subject to a mandatory program where they would have to verify employees' work eligibility with the federal government (not just new workers, not just temporary workers, permanent residents or folks that look un-American, whatever that means, this is for the whole US labor market, retroactively, how ever many hundreds of millions that may be).
• Local law enforcement agencies in the border regions would be allowed to enforce immigration law (which they are just itching for, seeing as they have absolutely nothing else to do, are over funded, over staffed and over equipped as it is, and their personnel is extremely well prepared to do on-the-spot immigration law interpretation due to all that law school training).

Senator Specter tried to shepherd immigration legislation through the Senate Judiciary Committee earlier this month, but didn’t make it before Congress left for St. Patricks’s Day recess a week ago. Specter is trying to craft a compromise by taking the best elements from three major pieces of proposed legislation (McCain/Kennedy; S. 1033, Cornyn/Kyl; S. 1438 and Hagel; S. 1919) committed to comprehensive immigration legislation, guest worker provisions and all, which I find highly commendable.

But here’s the catch: Majority Leader Frist is trying to derail Specter’s efforts. Frist has announced that if the Judiciary Committee’s deliberations are not brought to completion on Monday, March 27 (which at this point seems unlikely), he will introduce legislation himself, essentially an exact copy of the Sensenbrenner bill, which has yet to be discussed before the full Senate. Well, with friends like that… I guess good deeds really don’t go unpunished in the GOP these days.

My question is this: what is Frist trying to pull? Who is he trying to please?

Here’s why I ask:

• President Bush has come out in favor of comprehensive immigration reform on numerous occasions, specifically underlining the need for a temporary guest worker program. It was even in the 2006 State of the Union Speech: “And we must have a rational, humane guest worker program that rejects amnesty, allows temporary jobs for people who seek them legally, and reduces smuggling and crime at the border. (Applause.)”. I thought I’d just leave the ‘applause’ thing in there from the WH transcript to add emphasis.
• Big Business, for instance the US Chamber of Commerce, is totally against the Sensenbrenner bill (which mostly has to do with the mandatory employment verification idiocy, but they actually also support a guest worker program, which makes perfect sense from their perspective). In fact, the Chamber made HR 4437 one of its key votes in 2005. 203 Republicans lost their opportunity for a 100% Chamber of Commerce approval rating on that one.
• Americans for Tax Reform, Grover Norquist’s crusaders, are not only for comprehensive immigration reform, they offered two heart-warming letters this week in support of Specter’s epic struggle. A nice letter for Specter, a not so nice letter for Frist. Norquist calls it ‘heavy lifting’ (- who could possibly be against a heavy lifter?), and you know Grover is in favor of comprehensive reform when he boldens and underlines it!
• The religious community hasn’t been sending the warmest of prayers to Senator Frist lately. Some 20 Catholic organizations with national networks have come together to form the organization ‘Justice for Immigrants'. Member organizations include United States Conference of Catholic Bishops, Catholic Charities USA, U.S. Jesuit Conference, and a bunch of others. These organizations are more than instrumental in arranging the massive marches and demonstrations that are going on in DC, New York, Chicago, Phoenix and Los Angeles these weeks. Think they can generate some crowds here and there? Me too. Some of the GOP proposals actually involve making it a criminal offence to ‘facilitate’ or ‘assist’ undocumented immigrants, which would target the Catholic and other religious communities directly and prompted a comment from Hillary that this would “criminalize the good Samaritan and probably even Jesus himself”. Interesting point. One that the Catholic Bishops share.
• Fellow GOP heavyweights, from Pres Bush, Senators Specter, McCain, Brownback, Graham, Cornyn, Kyl, Hagel – all in favor of comprehensive immigration reform in one way or another.

So who is left? Rep. Tom Tancredo? The Tennessean KKK? I seriously cannot figure out why Frist is being so adamant about derailing Specter’s efforts, but I guess the next weeks might give us an answer. I can’t even see how Bill Frist would come out ahead from all this, because the Republican base, not even the most conservative part of it, isn’t consistently against comprehensive immigration reform, for reasons listed above.

Maybe Senator Frist wants to position for the hard-line profile on national security during the GOP primaries, and thinks that anti-immigration is the way to get there. But maybe he’s just the same wacko that video-diagnosed Terry Schiavo and declared her ‘responsive to visual stimuli’ when she was, in fact, in a persistent vegetative state. Hmm, interesting parallel that one.

a step ahead.

2006-03-24T12:12:00.000-08:00

anyone who remembers our recent debate over the constitutionality of fred phelps' funeral protest restrictions should read this analysis by eugene volokh, leading first amendment scholar and host of the ultra-popular (though quite conservative) legal/political blog, the volokh conspiracy. the vc largely inspired the form and substance of 'tomorrow and probably,' so i highly suggest it.

volokh parrots many of the arguments presented here on both sides of the issue, so kudos to all 'tomorrow and probably' readers who contributed to our spirited debate.

tomorrow and probably the day after but definitely a step ahead of the volokh conspiracy.

juxtaposition.

2006-03-24T08:03:00.000-08:00

this is certain to raise eyebrows. checkpoint, an israeli software company, withdrew yesterday its proposal to acquire sourcefire, a us competitor, amid security concerns from the bush administration. the story is here.

one of sourcefire's main products is 'snort', an anti-hacker software application used on us military and intelligence computers. sourcefire controls the patent and source-code for snort, which was authored by a sourcefire senior exec. under the terms of the deal, checkpoint would acquire sourcefire's patents, source-code blueprints, and employee expertise.

checkpoint and sourcefire announced the deal last october, and the bush adminstration announced its intent to investigate the security implications in february (days before the uae port deal story broke). to be clear: this is the exact same investigation that ultimately vetted the uae port deal; same people, same process, same everything.

the investigation did not bode well for checkpoint. admin officials expressed serious concerns about an israeli company controlling intellectual property rights to source-code for us military/intelligence security software. so checkpoint abandoned the proposed acquisition yesterday, as the investigation approached its conclusion.

comparisons to the uae port deal, laced with back-and-forth accusations of racist and anti-semitic motive, seem all but inevitable. the two stories are simply too close in time and content to avoid juxtaposition. allow the uae govt to acquire a british company that operates us ports, but bar an israeli company from acquiring a us competitor that controls security software for us military and intelligence computers. if you ignore some key facts and focus on the religion of the parties involved, the decisions probably appear contradictory with a hint of anti-semitism. but if you consider those key facts along with the religion of the parties involved, it seems inconceivable that any prejudicial motive was involved.

first. in a simplistic sense, the bush administration supported an arab country and opposed israel. but could this have been motivated by some pro-arab anti-israeli slant on bush's part? does he have such a slant? i think no. in fact i would suggest just the opposite. the fact that bush's people rejected the israeli takeover bid but blessed the uae port proposal indicates to me the former must have been grossly imprudent and the latter entirely harmless.

second. there is a significant factual discrepancy between the two arrangements. under the terms of the port deal, the uae would own a british company that has contracts to operate some us ports. as much as many politicians tried to confuse responsibility for operations and security, they are in fact quite different. the uae subsidiary would not have had any responsibility or capability for port security. as i discussed here, port operations consist of such mundane tasks as hiring forklift drivers from the international longshoreman's union. nothing to do with port security.

the checkpoint/sourcefire deal is notably different in this respect. the israeli company would acquire direct ownership of sourcefire's patent rights and source-code blueprints for snort, the security software currently installed to protect us military and intelligence computers. that is a far cry from acquiring responsibility to hire... oh, say janitors to clean sourcefire's offices (or something analogous to forklift drivers).

in sum, i don't think there's anything sinister going on here (as much as it pains me to defend a bush administration stance). but i fear the issues are sufficiently confusing that politicians and the msm (lou dobbs, that means you!) will spin the story to appear anti-semitic or at least anti-israeli. i'm very curious to see whether the story makes any waves, and if it does, how the country reacts.

saunetiquette.

2006-03-24T05:50:00.000-08:00

i've made it pretty clear thus far that 'tomorrow and probably' will not be a diary-style blathering of my daily trials and tribs. a blog needs direction, and that's not the direction i've chosen for mine. that said, i must share with you a most unusual exchange i had yesterday evening.

i joined the local gym three months ago. i go very consistently, but i don't have a hard and fast routine yet. i'll row, or bike, or stairmaster, or run, or lift, or some combination of those activities. but i would never use the sauna - until about two weeks ago. i decided to give the sauna a shot, largely at my dad's suggestion (he describes the sauna as his 'reward' for a hard workout).

sauna etiquette is a pretty amorphous concept. i certainly don't have a handle on it. some guys like to b.s. with other dudes about whatever. some guys want complete and utter silence. i myself fall closer to the latter category, but i'd never refuse a person a decent conversation. in two weeks of sauna-ing, i've had a handful of pithy chats with a variety of guys, most of them chotches.

in any event, i entered the sauna yesterday after a decent workout. there was one other dude in there. he was a middle aged white guy. i could tell immediately that he was the bs-ing type, but he seemed harmless so i didn't think much of it. i had barely sat down when he said hello and asked about my picks in the tourney. i said i had connecticut winning it all (lie, i know). he asked what did, so i told him gtown law. he asked if i live on campus still, and i said no. he asked where i live, so i told him my neighborhood. he asked if i live by myself, and i said no i live with my fiance. this is where it started to get wierd.

the guy makes this crooked face and says, you really shouldn't be doing that. so i look at him really crooked and say, it's been great for us thanks. so he says, i'm really trying to steer my daughters away from that. so i say, well i know it's not for everyone - i'm sure you know what's best for your daughters (another lie). then he says, so are you keeping it platonic? so i look at him even more crooked and say, yeah buddy - we're best friends. he obviously didn't get the hint because he comes back with, no that's not what i mean. so i say, i don't know what you mean and i really don't care to. but he says, are you having sex? so i say, not with your daughters if that's what your worried about!

then the guy accuses me of being inappropriate. are you kidding me?!?! inappropriate?!?! i just got accused of being inappropriate by a middle aged man who asks random guys half his age in the sauna about their sex lives?!?! that's a real feat. a regular world record. you got a lotta nerve buddy, accusing me of being inappropriate. so then the guy kind of backs off, you know. he says he didn't mean anything by it.

we sit there in silence for a few minutes. i mean, i'm not gonna say anything else to this freaking guy, but i'm not gonna leave before i'm good and ready either. then out of nowhere he says, there are a lot of studies that show cohabitating is bad for your relationship in the long run. so i glare at the guy and respond, mark twain was fond of the old aphorism - there are three kinds of lies in this world: lies, damn lies, and statistics. don't get your panties all in a bunch over us buddy - we're fine. then i leave.

wierd, huh? i thought of complaining to the gym management about the guy. i mean, am i off base here? was that guy way out of line? what a chotch.

the guy's got no saunetiquette.

smelling salts.

2006-03-23T10:02:00.000-08:00

california democrat dianne feinstein isn't my favorite us senator. her inept questioning of now-justice sam alito was mostly a disservice to legitimate efforts to oppose his confirmation (though she redeemed herself by saying,' if you are pro-choice then you cannot vote for sam alito'). in feinstein's defense, she's not a lawyer, which begs the question why she's on the judiciary committee.

in any event, i'm not here to talk about dianne feinstein per se. instead i'll discuss a few comments made by richard mountjoy, the only republican challenging feinstein's senate seat in the november elections. the la times story on that race is here.

feinstein proposes withdrawing 80k us troops by the end of this year, and all the rest next year. this i don't understand. why would we withdraw 80k troops and leave the rest? i'd hate to be in the group that stays. as i understand it, we don't have enough troops on the ground to maintain security now. what will happen to the remaining troops if we reduce the current number by two-thirds? but my opinion of feinstein's 'strategy' for iraq is neither here nor there.

feinstein also suggests president bush should fire secr of defense donald rumsfeld. she is neither the first nor the loudest person to make this suggestion. i won't bother recounting the numerous democrats and republicans who have called for rumsfeld's removal. i would note democratic congressman john murtha said on sunday that firing rumsfeld should be bush's first priority in handling the iraq war debacle.

mountjoy, feinstein's challenger, responded to her positions as follows (from the la times article):

"I haven't been aware where he's really messed things up," he said. "Do they expect every encounter to go flawless?"

Mountjoy, a former Monrovia state senator and Navy veteran who fought in the Korean War, said Feinstein and "her left-wing friends" see a U.S. defeat in Iraq as a political win for Democrats.

"Come on, let's be honest about it," he said, calling Feinstein "part of the cut-and-run group."

He praised Bush for having "the guts" to let the military determine U.S. troop levels in Iraq.

mountjoy must be blind, deaf, and stupid. he didn't see where rumsfeld really messed things up in iraq? does he not watch the news? does this guy even know what year it is? there are two ways to look at mountjoy's defense of rumsfeld.

first. rumsfeld should not be held culpable because a secr of defense is not responsible for flawed military operations. interesting take, but probably not one i'd agree with. there does seem to be a lot of blame being covertly displaced onto military commanders.

second. rumsfeld should not be held culpable because he executed the war effort as well as anyone could have. also interesting, but almost certainly not sustainable. besides the fact that each ex ante justification for starting the war has since been debunked, we've executed the thing miserably. most (all?) experts now agree we should've had three times as many troops on the ground from the getgo. it's also commonly accepted that we erred in disbanding the sunni military after toppling saddam. even those who agree with the decision to disband the military believe we foolishly allowed the soldiers to walk away with their weapons and command structure intact. those folks now make up a large part of the insurgency. in sum, defending rumsfeld is political suicide. someone should've told mountjoy.

i also love mountjoy's take on the left-wing's secret desire for the us to lose in iraq. republicans tried spinning that argument as more and more democrats criticized the war. it mostly backfired politically. perhaps because it's insane and insanely offensive. oh yeah, democrats are thrilled with what's happening in iraq. they'll win back congress and maybe the white house, and all we had to sacrifice in the process was our international reputation, a few hundred billion dollars, and a few thousand young american lives. you freaking idiot. no one is pleased about what's happening in iraq. if i had a rubber hose right now i'd...

i don't really know what to say about mountjoy's praise for bush's decision allowing the military to determine troop levels. did bush even do this? i thought gen abizaid and others testified before congress that troops should number in the neighborhood of four hundred thousand, only to be ignored by bush and rumsfeld. am i wrong on the facts here? even if bush did let military leadership determine troop levels, should he get some credit for it? to the extent troop levels determined by the military were grossly inadequate, should bush be praised for having delegated imporant authority to an agency that screwed abused it? i don't get mountjoy's point here. anyone?

so, i think it's time for the doc to break out the smelling salts and wake richard mountjoy up. he must've been unconscious for almost three years now.

straight talk.

2006-03-22T13:19:00.000-08:00

president bush yesterday issued his most candid news conference in memory. he talked about iraq, afghanistan, iran, and the domestic economy. reporters asked him pretty tough questions and he gave pretty straightforward answers. a lot of what he said was spin, but most of it was not evasive. the transcript of the news conference is here.

bush took the party-line on the status of violence in iraq: it's sectarian aggression short of civil war.

bush used tautological reasoning to describe our strategy there: we're going to prevent civil war by forming a govt of national unity.

bush referred vaguely to united nations resolution 1441, which his legal advisors believe provided the intl legal justification for the war (i would love for anyone with expertise on this to comment extensively on 1441).

bush lamented how awful the media makes everything look in iraq, when really it isn't. funny thing about that: he practically owns his own media outlet. query: my current corporations prof spent the last several years working for john ashcroft at the dept of justice. the guy is credited with writing large parts of the patriot act and being a strong force in the bush legal camp. my prof also sits on the board of directors of newscorp, rupert murdoch's multibillion dollar media conglomerate, which owns fox. think they had a chinese wall set up there? i doubt it.

bush talked about a lot of other stuff. what'd you find interesting/intriguing/infuriating?

patrick dubya @ sportcoat speculator

2006-03-22T08:09:00.000-08:00

i've got a great new blog you all you 'tomorrow and probably' readers. patrick dubya, the blogger, is now pining over at 'sportcoat speculator.'

p-dub, as i'll refer to him, and i go way back. we used to ride carpool together to elementary school. so when he alerted me to his new blog, i immediately added him to my 'respected colleagues' list over there to your right. i also promised i would shout him out with a 'tomorrow and probably' post as soon as he got some material up.

the speculator now has three hilarious posts, including today's critical film review of oscar-winning 'crash.' ebert and roper beware; the sportcoat speculator has entered the blogosphere.

inquisition.

2006-03-21T19:58:00.000-08:00

name the apostles. name the sixth commandment. name moses' older sister. name adam's third son. tell me the story of the prodigal son. tell me the story of sodom and gomorrah. answer me now or i'll deport you to a country where you might be killed for your professed christian faith.

us immigration judges are currently executing an inquisition of asylum petitioners who claim religious persecution in their home counties. the board of immigration appeals is criminally complicit in the endeavor. the ijs and bia now require these asylum petitioners to demonstrate the authenticity of their faith by passing an oral test of religious doctrine.

two recent circuit court decisions address the inappropriate and offensive nature of such inquiry. the decisions are here and here. i'll discuss the first one in more detail now.

yoze rizal is from indonesia, the most highly muslim-populated country in the world. in 1983 rizal entered a christian parochial high school, converted the christianity, and began attending church. in 1984 rizal was baptized christian. in 1986 rizal graduated from the christian high school. rizal attended church weekly during these years and has continued to do so to this day.

in indonesia rizal faced severe opposition to his christian prerogative. at various times rizal was harassed by his family, expelled from his home, beaten by his co-workers, fired from his job, and threatened with death by muslim religious leaders. so rizal rolled out. upon arrival in the us, rizal applied promptly for asylum based on religious persecution.

rizal described the above-mentioned facts in his written petition. at his hearing before an ij, rizal swore to the facts presented in the petition. rizal also presented documentation that he had graduated from the christian school, was baptized, and had attended church for nearly 20 years. rizal's family did not show up to testify they had harassed him and expelled him from his home. rizal's former employer did not show up to testify he had fired rizal for being christian. the folks who beat rizal and threatened his life did not show up to testify to these events.

as i mentioned in a recent post, the asylum hearing is formally adversarial, but the ij is permitted and expected to participate in questioning witness' where s/he requires clarification. the ij at rizal's hearing was apparently not convinced that rizal was a real christian. so the ij and the ins lawyer gave rizal a quiz of biblical history and christian doctrine.

where was jesus crucified? who was moses? which apostles wrote the new testament? who denied knowing jesus after the crucifixion? who prepared the ten commandments?

rizal said jesus was crucified in bethlehem. in fact jesus was born in bethlehem and crucified in jerusalem. rizal said moses was the son of miriam. the ij laughed because he thought rizal said mary, obviously mother to jesus. in fact miriam was moses' older sister, so rizal wasn't far off. rizal didn't remember the apostles' names. rizal said jesus prepared the ten commandments. obviously wrong. but rizal said the teachings of his church focused more on good/bad/right/wrong than on biblical history. rizal then described in detail the memory of his baptism.

the ij gave an oral opinion rejecting rizal's petition for asylum because he did not believe rizal's story. the ij did not believe rizal was a true christian because rizal failed the quiz, and therefore the rest of rizal's story was not credible. the bia affirmed the ij's rejection without saying a single word about it.

holy crap, no pun intended. you've gotta be absolutely kidding me. most christians in the us probably can't answer all or even some of the ij's questions. but rizal, an asylum petitioner facing deportation to indonesia and possible death there, is held to a higher standard. what's the deal? rizal should be able to gain asylum in the us without any quiz of christian doctrine. the only relevant facts are that he converted to christianity, openly professed that faith, and was or would be persecuted for that profession of faith in indonesia.

fortunately the second circuit court of appeals reversed the ij and bia decision. rizal will get a new hearing. but for shame.

the inquisition. coming to a courtroom near you.

iamwhoiam.

2006-03-21T14:37:00.000-08:00

blogging is a lot like looking in the mirror. you learn a lot about yourself. one thing i've learned about myself is that i love a good tautology.

tautology
n. a linguistic redundancy: the redundant repetition of a meaning in a sentence, using different words

a tautology is basically a sentence that says nothing. saying nothing is fantastic because you don't have to say anything. notice that clever use of a tautology to describe tautology.

in any event, the simultaneous realizations that i love tautology and that blogging is like looking in the mirror led me to my favorite tautology of all: i can only be who i am, aka iamwhoiam. hence the title of this post.

i'll discuss here some tautogical reasoning repeated incessantly by republicans discussing the future of iraq. hat tip to my dad for pointing out the absurd redudancy and meaninglessness of the following exchange: reporter asks republican politician what went wrong in iraq? or was iraq a bad idea? or weapons of mass destruction? or greeted with flowers? or oil will pay for it? republican response to any of these questions: we can only deal with the situation we now face because we are where we are. now i'll concede this is true. but that's the point of tautology; it is a sentence that is always true. the republican response reduces to the mere statement: we are where we are. the paper is white because it is the opposite of black. if p then p (for you symbolic logic geeks). soze is an idiot. i'll offer now an analogy i believe illuminates the inappropriateness of republicans' invocation of the 'we are where we are' tautology. consider the following facts:

you live on main street in downtown city, usa. there are two hospitals near your house in downtown city. i own one hospital and somebody else owns the other. i invite you to visit my hospital and you oblige. but when you arrive i shoot you in the stomach. you need hospital care. you suggest going to the other hospital in downtown city. my response: you should let the doctors here treat you because we are where we are.

no. no. stop the car. hold up. back up a minute. i just shot you in the stomach. why would you agree to treatment in my hospital? simple fact is you wouldn't. you wouldn't let me have anything to do with your treatment. for goodness sakes i just shot you in the stomach. but aren't we where we are? yes. doesn't that mean i'm in control going forward? absolutely not. you're going to the other hospital and we should all vote democrat in 06 and 08. republicans have shot us in the stomach. and while it's true we are where we are, that sure doesn't mean we're going to their hospital for treatment.

idowhatiwant because iamwhoiam. feel free to put your favorite tautologies in the comment section.

polygamy.

2006-03-21T08:24:00.000-08:00

i normally like to play hide-the-ball with mysterious (and eminently clever) titles to my 'tomorrow and probably' posts. there's no need for that here. this post is about polygamy and that's all there is to it.

polygamy has made a lot of news and a lot of waves recently. the new hbo series 'big love' chronicles the life of a polygamist family, a man with three wives. a recent newsweek article describes the resurgence of 'polygamy activists.' conservative pundit charles krauthammer just ran an op-ed piece about polygamy and gay marriage in the post (hat tip to backandforth). and tucker carlson's show last night was about polygamy (though i only saw the preview). i'll respond here to krauthammer's article and discuss the growing interest in polygamy.

krauthammer believes legal polygamy must follow gay marriage. he writes:

In an essay 10 years ago, I pointed out that it is utterly logical for polygamy rights to follow gay rights. After all, if traditional marriage is defined as the union of (1) two people of (2) opposite gender, and if, as advocates of gay marriage insist, the gender requirement is nothing but prejudice, exclusion and an arbitrary denial of one's autonomous choices in love, then the first requirement -- the number restriction (two and only two) -- is a similarly arbitrary, discriminatory and indefensible denial of individual choice.

conservative republicans, bigots, and the catholic church would all love for you to believe gay marriage will lead to legal polygamy. but it won't. it can't. this is just the familiar republican scare tactic. they're so good at this. if you oppose the war in iraq then you oppose our troops. if you support censuring the president then you oppose national security. if you support the constitution then you're committing suicide. if you support gay marriage then you support polygamy. it's infuriating to watch every policy debate twisted into these knots. how about this: if you oppose gay marriage then you're a bigot.

so krauthammer suggests that if you allow gay marriage, you must also allow polygamy. wrong. how do you allow gay marriage and prohibit polygamy? like this: i allow gay marriage and prohibit polygamy. logic games in the context of civil rights are for people who lack values and conviction. there are several ways to attack krauthammer's argument.

first. the 'opposite sex' requirement is arbitrary and discriminatory, as krauthammer suggests. it's based solely on religious/moral animosity towards gay people. there is no justification for this requirement absent homophobia. but the 'two people' requirement is not similarly arbitrary or discriminatory. legal polygamy theoretically allows any combination of men and women to marry. but realistically it leads mostly to men with multiple wives (please comment if you dispute this). to quote backandforth, it 'smacks of male domination.' we have a well-established societal goal of eliminating patriarchy and mysoginism, of which eliminating this type of arrangement is an integral part. the prohibition of polygamy is therefore justified without reference to moral/religious opposition to polygamy or polygamists. it's just good public policy.

second. the legal basis for allowing gay marriage in no way implicates polygamy. the best constitutional argument for gay marriage is based on the 'equal protection clause.' stay with me now. equal protection requires that the law not distinguish between persons on the basis of race, sex, and a few other unrelated classificiations. so susan wants to marry jen. why can't susan marry jen? because susan is a woman. if susan were a man she could marry jen. the law thus distinguishes between a man and woman, affording a right (marriage to jen) to the former and denying it to the latter. it's that simple. courts in massachussets and maryland have applied this reasoning to find the state constitution prohibits the 'opposite sex' requirement.

a polygamist, straight or gay, could not apply similar logic. now susan is married to jen. susan wants to marry cathy too. why can't susan marry cathy? because she's already married to jen. it has nothing to do with the sex of anyone involved. equal protection should not forbid the law from distinguishing between married and unmarried persons.

third. assuming for the sake of argument that allowing gay marriage but not polygamy is logically inconsistent, it's still the right thing to do. whatever course of action we take with straight marriage, gay marriage, and polygamy will involve line-drawing. some of those lines with be pretty thin. allow straight marriage but not gay. allow gay marriage but not polygamy. allow three person marriages but not four. if we have strong values and conviction, i'm confident we can draw a line between gay marriage and polygamy, allowing the former but continuing to prohibit the latter. i think we can do that.

so what to make of the hbo show, krauthammer's article, the newsweek article, and tucker carlson's show? polygamy is an entertaining topic. that's it. is polygamy becoming mainstream? far from it. will allowing gay marriage open the flood gates for polygamist civil rights activists to legalize their lifestyle? nope. not likely in this lifetime. do republicans want america to believe gay marriage leads necessarily to legal polygamy? yes. absolutely.

polygamy. go figure.

newsworthy.

2006-03-19T15:20:00.000-08:00

justice ruth bader ginsburg and ex-justice sandra day o'connor made provocative statements recently about the status of the judiciary and the direction of our country. i'd planned a 'tomorrow and probably' post to criticize the msm ('mainstream media') for its complete failure to report the statements. but alas, the times finally ran a story today. it's here.

the times' story is adjacent to the second half of a story about men's reproductive rights on page twenty-two of the paper's cover section. it's telling that the men's rights story is continued from the times' cover, while the story reporting the justices' speeches begins and ends on page twenty-two. i could just criticize the times for that oddity, but the article is so awfully incompetent that my criticism must go deeper. [as an aside, i have a post in the pipeline discussing the ressurgent interest in men's reproductive freedom.]

first. you need some background on the technicalities of the terry schiavo debacle to fully understand o'connor's speech. remember schiavo? she was in a permanent vegetative state. florida courts, pursuant to florida law, gave schiavo's doctor authority to remove her feeding tube. federal courts would normally not have jurisdiction to reconsider this state court decision; they couldn't even hear the case. but congress passed a law specifically granting federal courts jurisdiction to review schiavo's case. a federal court accepted the case pursuant to the congressional grant of jurisdiction, but found no merit in the appeal and affirmed the florida courts' decision. schiavo's feeding tube was removed and she died peacefully.

tom delay and john cornyn, among many republican congressmen, criticized the federal court's decision, suggesting they had opposed the will of congress by refusing the reverse the florida courts' decision. that logic is painfully flawed. literally painful. it hurts me. congress absolutely can tell federal courts what cases to hear. they exercised that power strangely, though within their constitutional authority, in the schiavo case. in contrast, congress absolutely cannot tell federal courts how to decide a particular case. delay and cornyn confused a congressional grant of jurisdiction (ok) with a congressional order to reverse the florida courts (not ok). reversal is obviously what congress had in mind, but such a command is so far outside the scope of congress' power it's laughable. cornyn also said this sort of out-of-line 'political decision' by a court is what causes violence against judges, referring to recent courthouse shootings.

o'connor suggested in her speech that these congressmen's statements, not judge's decisions, are what cause violence against judges. she also suggested that republican interference with the judiciary was leading the us down a path toward dictatorship.

second. you need some background on the use of foreign law in recent supreme court decisions to fully understand ginsburg's speech. the supreme court interprets the us constitution. this normally does not involve reference to decisions of courts in other countries. but in two recent decisions, the supreme court did cite foreign decisions to help justify its reasoning. in lawrence v. texas, the supreme court decided laws prohibiting sodomy violated the constitutional right to privacy. the court cited a decision from a european court in support of this proposition. republicans and/or homophobes were upset. in roper v. simmons, the court decided executing kids violated the constitutional ban on cruel and unusual punishment. the court cited decisions from various foreign courts in support of this proposition. republicans and/or executioners were upset. largely in response to these two cases, republicans in congress introduced bills to prohibit federal courts from citing foreign law in their decisions. the bills didn't go anywhere. an aside: republican senators also made a point of asking sam alito and john roberts their opinions of the citation of foreign law during their confirmation hearings.

ginsburg said in her speech that she and o'connor received death threats over the internet from an individual or group angered by the citation of foreign law in supreme court decisions. she suggested republicans' bills to prohibit the practice fueled animosity that led to the threats. ginsburg also said an independent judiciary is essential to guarding against 'oppressive government.'

so for weeks the msm refused to cover the story. the times finally caved today and printed a relatively brief article on its twenty-second page. and what was the title of the article? justices' lives threatened over improper footnoting. nope. justices believe us may become dictatorship. nope. only two female justices in history concerned about republican congressmen. nope. public comments by justices veer toward the political. yep. that was the article's title. public comments by justices veer toward the political. it's an article about the historical curiosity of retired and sitting justices commenting on political matters, rather than simply spewing technical legal mumbo-jumbo.

you've gotta be kidding me. two supreme court justices believe republican leadership is leading the us down a path to dictatorship, and the real story is the political nature of their commentary? wrong. the real story is two supreme court justices believe republicans are leading the us down a path to dictatorship! it's such an incredibly remarkable suggestion i can't even fathom how the nyt chooses to treat its incendiary content as secondary to its political nature.

but it goes to show: what's newsworthy to one may be trivial to another.

roll tide.

2006-03-17T09:54:00.000-08:00

i've got some great news for you from the fine state of alabama. no seriously, it really is good. i know what you're probably thinking: idowhatiwant hates red states, and all he ever does is trash their politics. not so my friend. not so. as i stated above, i have some great news for you from the fine state of alabama.

thad mcclammy is an african-american member of the alabama house of reps, and an absolute class act in my book. thad is currently promoting the 'rosa parks act,' a bill that would pardon all the people arrested years ago for violating alabama's segregation laws. apparently, thad's bill for mass pardon raised additional support recently in the wake of mrs. parks' funeral. the cnn.com story is here. thad's website is here.

this is significant. i know there are no more segregation laws. and i know no one is currently being punished for violating those old laws. and i know all the would-be pardonees are elderly or deceased. but i don't care. this is significant. this is exactly what we should be doing. the government, in alabama and across the nation, should be rolling through society, erasing all the denigrating vestiges of segregation and slavery in its path.

the record of a person's arrest or conviction for violating segregation is an awful mark. it may be meaningless for all practical purposes, but its subtle consequences are severe indeed. it is a ball and chain; a heavy weight that must be lifted before we can move forward as a society of true equals. the mass pardon, that act of erasing simultaneously all those marks of official segregation, should give each of us pause. it is a beautifully symbolic stroke; an official rebuke of the despicable way things were; a renewed exclamation of our manifesto of equality and inclusion.

just last weekend i had a related conversation with carolina and several good friends over dinner. i couldn't say how the discussion started; it does seem an odd topic for dinnerspeak. but we argued over whether the city of washington should change its name in light of its namesake having owned slaves. and washington was just an example; there are of course many places and things named in honor of slaveowners. if you've been diligently reading 'tomorrow and probably,' you can probably anticipate which side of the debate i fell on.

yes, let's rename washington, dc. i know the city isn't named after washington because he owned slaves. in fact it's named after him in spite of the fact he owned slaves. it's named after him because of all the great things he did, like lead us to victory against the british and continue on as our first president. those things were surely great. and that's exactly why we should change the name of the city. the city's name conveys the message that those great things washington did outweigh his awful practice of slave ownership. i don't think they do. and i don't think we should send that message.

i know there are all kinds of practical difficulties with changing the name of a large city, especially our capital. these problems are entirely irrelevant. changing the city's name is significant only for its symbolism, and so is having the debate. and symbolism has great meaning, as the honorable mr. mcclammy's alabama bill to pardon many deceased violators of segregation demonstrates.

in honor of thad mcclammy and his 'rosa parks act,' alabama is hereby pardoned from the disgrace of a nasty 'tomorrow and probably' rant. for now.

roll tide.

scary.

2006-03-17T08:52:00.001-08:00

I'm a sucker for National Journals Congressional Insiders Poll. It's the first thing I look at when getting into the office Friday mornings. If you're not familiar with it, it's a poll conducted amongst 111 members of Congress (anonymously), and gives you an interesting view into the fish-tank. Here’s the one from today:

Q: Would you support air strikes against Iran if that was the only way to prevent that country from getting nuclear weapons?

Republicans

Yes: 76%

No: 16 %

Other responses: 8%

Democrats

Yes: 39 %

No: 47 %

Other responses: 14%

- 76% of Republicans want to blow up Iran! wtf?

Happy St. Patrick's Day by the way.

the discomfort of strangers

2006-03-17T07:19:00.000-08:00

you've all noticed the heated debate in europe about immigration and integration, and being a dane myself, i thought i’d throw a few comments your way about what’s going on back home.

the muhammad cartoon case aside – i’ll comment on this at some other stage - denmark is notoriously poor at integrating immigrants, particularly the muslim minority. in one way, this is really difficult to understand, seeing as the percentage of immigrants overall is only 6-8%, and the percentage of muslim immigrants overall is only 2-3%. despite the low numbers, integration has turned into the most important political issue over the last decade or so, which is kind of surprising, seeing, for example, as denmark is the country with the highest level of taxation in the world - 54% income tax on average, and even more if you have a high income - one would expect that to be an issue, right? (tax cuts are usually number 5 or 6 on the list, when danish voters are polled)

there are a couple of different issues hard at work here. first of all, dk is one of the most ethnically homogenous societies in the world. there was no immigration to speak of until the late ‘60s/early ‘70s, where dk, like many other european countries, invited guest workers from turkey to fill out vacant positions in the low-skilled, low-pay part of the industrial sector. these guest workers ended up staying, and it didn’t really create a lot of problems. point is: immigration is a fairly new phenomenon in denmark and the other northern-european countries. these countries have yet to find the right strategies to deal with the influx of immigrants with a different history, culture and different preferences than the majority of the population.

second issue is the tax base and the resulting welfare system. denmark has one of the most highly-developed welfare societies on earth (americans often label it ‘socialism’, which is not far from the truth): universal health care, free education from kindergarten to university, extremely generous unemployment compensation, state paid pensions, subsidized public transportation and so forth.

third issue: the labor market consists of a large service industry and public sector, but there is very little heavy industry, seeing as denmark has no natural resources to speak of (well, there’s some oil and natural gas way out in the ocean, but this is an industry which uses highly skilled and specialized labor). this results in a labor market with very few jobs for unskilled labor. on top of that, the minimum wage is very high, so employers demand a high level of skills if they are going to hire people at all, even for menial work.

fourth issue: the subsequent immigrant groups, after the initial turkish guest-workers, have been quite different. a large group came from the former yugoslavia, and this group has integrated pretty successfully, just as the turks did, but small groups from the middle east and north-east africa have not had the same success. in part because they lacked the skills to enter the labor market, in part because their cultural and social preferences led to many clashes with the rest of society.

the result: a ‘discomfort of strangers’ created in large part by a combination of all these facts. a welfare society like the danish one is based on the principle of solidarity (there’s that socialism again) – you will only be willing to pay more than 50% tax if you trust other members of society not to misuse it. this level of trust and solidarity can be achieved through a tacit social contract, but starts falling apart if people feel that ‘strangers’ are coming into society and misusing the system; collecting entitlements such as welfare just because you don’t want to work (a common but incorrect myth), or individuals being eligible for pensions even though they have never paid into the system (harder to debunk). but this hostility overlooks the fact that the labor market is not open to low-skilled immigrants, which is unfortunately the vast majority, because they do not have the skills that employers require for them to pay the minimum wage. also, you don’t integrate into danish society, you have to assimilate. your cultural and social preferences are perfectly fine as long as you have them at home, but in dk we think differently and you’d better do the same or go home. again, the result of being ridiculously homogenic, but this will change over time.

in effect, this results in an institutionalized discrimination in a labor market which was intended to be gentle and flexible for everyone, but isn’t. also, it re-enforces the myth that ‘immigrants are lazy, don’t want to work, they just come here for the welfare’. and then, of course, it leaves the muslim minority feeling like third-class citizens, not belong to their current society, not belonging to their former one, not being able to get a job, not being accepted by the surrounding society. obviously, this creates animosity which in turn breeds radicalism amongst a very tiny group of mis-fits, who grab all the headlines and start the vicious cycle all over again.

denmark and other european countries need far-reaching reforms to address these issues, but they will not be able to carry them out over night. this is where the time-line kicks in, because the whole issue of immigration is still new to northern europe in particular. personally, I think we will make a lot of progress over the next decade or so, but not until the discomfort of strangers gets even worse than it is now, so a critical mass rises up in protest and demands sensible solutions.

debate + obstacles = debacles

2006-03-16T10:29:00.000-08:00

we need to have a debate in this country over judicial confirmation hearings. supreme court confirmations in particular, but all judicial confirmations included. what questions should senators be expected to ask nominees? what questions should nominees reasonably be expected to answer?

but there are serious obstacles to having an open robust debate on these questions. first. people only seem to care about the issue when a supreme court nominee is waiting for his first question in the senate judiciary committee. second. when a supreme court nominee is waiting for that question, neither democrats nor republicans have any interest in a procedural debate about proper questions and answers. they'll use any available tactic to achieve their substantive goal, either affirm or reject the nominee. democrats ask republican nominee tough questions, republicans say don't answer. republicans ask democratic nominee tough questions, democrats say don't answer. i'm not criticizing senators for this. there are no agreed-upon ground rules for these proceedings. it's like a football game with no sidelines or referree. what do we expect them to do?

so take the debate i suggested. now add the obstacles. what do you get? debacles. and that's exactly what judicial confirmation hearings have become. freaking debacles. many senators are made fools of. few real questions get answered. everyone walks away having learned nothing about the nominee's so-called 'judicial philosophy' or anything else of substance.

point is we need to have that debate now to iron out some reasonable expectations for the confirmation hearing process. and we can. justice john paul stevens is 86 years old. justice ruth bader ginsberg is also up there. bush has two years left on his presidency and it's unclear, to say the least, which party will occupy the white house and senate when these justices 'leave the bench' (all-due-respect). democrats and republicans could argue procedure without awareness of their substantive goals because they don't know whether the next nominee with be president of the aclu or the federalist society. and if we can agree on some ground rules now, then maybe the next confirmation hearing won't be such a freaking mess.

should nominees be expected to answer questions about the decisive legal/political issues of the day? should nominees be expected to re-affirm or disclaim their prior statements about these issues? should nominees be expected to say how they might have reasoned or voted in recent cases?

here's my take. i expect judicial nominees to answer questions during a confirmation hearing in virtually the same way i expect political candidates to answer questions during an electoral campaign. news flash: judges make political decisions. granted they're difficult political decisions, often the most difficult our society faces. also granted the decisions are nicely dressed in complicated legalspeak. but in the end judicial decisions boil down to run-of-the-mill political decisions. so i wouldn't vote to confirm a judicial nominee without knowing his politics any more than i'd vote to elect a politician without knowing his. it just wouldn't make sense. like flipping a coin to decide whether abortion will be legal.

conservatives claim (at least when it's convenient) that judges don't, or at least shouldn't, make political decisions. that's the legislature's job. scalia recently said 'judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.' huh? yes they are. they're eminently smarter and more qualified than joe to make these important decisions. that's the stupidest thing i've ever heard, even if it is an exaggeration. scalia also claims constitutional amendment, not judicial creativity, is the proper way to adjust our framework of inalienable rights. he praises the 1920 amendment granting women the right to vote. does it make any real difference to anyone why women are allowed to vote? would you be bothered if i told you women can only vote because some judge says so? constitutional amendment or judicial creativity. who cares? the outcome is the same. women can vote. that's what matters.

in any event, leaving these difficult decisions to the legislature is itself a political decision. if you can predict how the legislature will come out, and you have the power to reverse it beforehand, but choose not to, then you have yourself made the political decision, albeit now in conjunction with the legislature.

many people probably agree that the line between political and legal distinctions has thinned in the past sixty years. most probably don't agree the line is now completely erased. anyone wanna try to redraw it?

do the math. debacles - obstacles = debate.

the madness begins.

2006-03-16T10:14:00.000-08:00

i promise that my posts about sports will be few and far between. many people just don't care about sports. even those who do probably prefer to get their news from espn.com. you don't need to read it here.

that said, i have a couple points about the ncaa tourney. at some point in my life, march madness replaced christmas as the most anticipated event of the year. it's that one thing that keeps me awake each year the night before it starts. 64 teams. 32 games in two days. single elimination. buzzer beaters galore. it's like being a kid in a candy story. i love it. my picks are below. feel free to memorialize yours in the comment section. then return to gloat if your picks are better than mine.

my final four: 'cuse, 'zags, illini, 'nova

finals: 'cuse over 'nova, 78-74

notables:
g'town makes it to sweet 16, loses to 'nova
west va upsets texas, loses to 'cuse

first round upsets of notice:
wisconsin-milwaukee over oklahoma (maybe not really notable because i couldn't care less)
alabama over marquette, without dwayne wade they've got nothin.

j-pack, our guest.

2006-03-16T08:44:00.000-08:00

it is my distinguished pleasure to announce that 'tomorrow and probably' has its first guestblogger. a respected friend of mine will post under the blogger name, 'jpackert'.

j-pack, as i'll refer to him, will post on 'international relations, islam in europe, immigration, the us approach to international institutions (icc and un human rights council, fx), stuff like that.'

so everyone please join me in welcoming j-pack, newest member of the ever-growing 'tomorrow and probably' blogosphere! looking forward to some interesting posts and lively conversation.

t-minus-thirty-minutes to MARCH MADNESS!

smokescreen.

2006-03-15T06:50:00.000-08:00

republican house leaders last night endorsed new ethics legislation aimed at curbing lobbying misconduct. the cnn.com story is here. the text of the proposed legislation is not yet available, but the story describes some key elements. i'll mention them. then i'll discuss one of the elements in detail here.

first. temporary ban on privately funded trips for members of the house. ban remains in effect until ethics committee can specifically define rules for such trips. carolina and i have had some back and forth on this. one of us focuses on perfectly ethical house members who take privately funded trips to give speeches, attend seminars, etc. the other believes many unethical house members take privately funded trips for less savory reasons, and finds no compelling reason to continue to allow any such trips. make your own decision.

second. lobbyists would be required to disclose their gifts to lawmakers. this is a no-brainer. why isn't this rule in place now?

third. lawmakers would be allowed to fly on corporate jets for the cost of a first-class airline ticket. lobbyists cannot join lawmakers on such flights. huh? what kind of ethics reform is this? i infer that lawmakers can currently fly on corporate jets for free or for the cost of a coach ticket. why not ban lawmakers' use of corporate jets entirely?

fourth. i'll quote this one from the cnn.com story because i'm going to discuss it in more detail:

In addition, Republicans intend to seek limits on outside political organizations that currently are permitted to accept unlimited donations from individuals. Republicans say that Democrats benefit disproportionately from these groups, and Republicans envision imposing a cap of slightly more than $27,000 on individual donations along with a requirement that donors be disclosed by name.

the ceiling on individual donations to outside political organizations is probably unconstitutional. buckley v valeo says that campaign contributions and outside expenditures are protected as core first amendment speech. in that case, the court struck down statutory limits on expenditures by an outside organization 'relative to a clearly identified candidate,' but upheld limits on campaign contributions by individual or group donors. the ceiling on expenditures represented 'substantial rather than merely theoretical restraints on the quantity and diversity of political speech' because outside organizations were excluded from 'any significant use of the most effective modes of communication.' in contrast, the ceiling on campaign contributions entailed 'only a marginal restriction upon the contributor's ability to engage in free communication' because s/he remained free to demonstrate support for a candidate by contributing, and the amount of support does not increase with the amount contributed.

republicans now propose a ceiling on individual donations to outside political organizations; presumably many of the same organizations subject to the unconstitutional expenditure limitations in buckley. the restriction combines elements of the limits upheld in buckley with those struck down. congress may limit contributions to political candidates, but congress may not limit expenditures by outside political organizations. so can congress limit contributions to outside political organizations? i think no.

there are a few wrinkles that will depend on details of the proposal. will the limitation apply only to c3 organizations? c4 organizations? both? the smoke will probably clear when these details are made public. but as a general matter, congress probably cannot limit individuals' contributions to outside political organizations where it cannot limit those organizations expenditures even relative to a clearly identified political candidate. to limit contributions to the organization is to limit the amount it can spend.

in addition, republican supporters of the rule did themselves no favor by noting that large individual contributions to political organizations disproportionately benefit democrats. although the restriction would surely be phrased as facially neutral, that statement makes it look like viewpoint discrimination, an appearance the court would not appreciate.

republicans may argue these restrictions apply to lobbying organizations and/or activities, rather than campaigning. i'm not sure i see a distinction here, let alone a difference. does anyone?

i will not comment on the required disclosure of individual donors to outside political organizations because it is a topic i know little to nothing about. please comment if you have a sense about this (constitutional? no?).

in any event, my larger point is that republicans, desperate to create the appearance of ethical reform and fiscal restraint in anticipation of the november elections, are pitching proposals of very questionable constitutionality. in the last week we've seen a 'line-item' veto from the white house and a limitation on political expenditures from the house gop. i'm only giving partial credit for these two proposals that may well be struck down by courts after the election. don't be fooled. look at what the other hand is doing. this is a smokescreen.

liberty or death: why the constitution may be a suicide pact.

2006-03-13T05:50:00.000-08:00

i recently happened onto redstate.org (yet another website i will not link here) doing research unrelated to this post. i was offended by much of what i read there, but that also is not germaine to my purpose here. i wish now to discuss one simple phrase i saw on redstate. many commenters on the site had adopted this phrase as their tagline or signature: 'the constitution is not a suicide pact.'

the phrase hardly needs explanation. republicans have effected an enormous expansion of govt authority in the wake of 9/11. see guantanamo bay. see nsa no-warrant wiretaps program. see patriot act. see torture. such expansion has prompted vociferous opposition from democrats, often leveled on constitutional grounds. many republicans now respond by quipping 'the constitution is not a suicide pact,' i.e. enforcing traditional constitutional norms to prohibit these intrusive govt practices would allow more terrorist attacks in the us. at least that's how i interpret the phrase. please point out if you think i'm wrong here.

what to make of this? the constitution is not a suicide pact. it sounds reasonable. after all, who would write a govt charter that allows for the destruction of the very govt it creates?
but there's more to it than that. ultimately the phrase boils down to 'anything in the name of national security,' and that's troubling.

the national security argument is no doubt compelling. we must actively defend ourselves against future attack, terrorist or otherwise. perhaps 9/11 mandates a constitutional gloss to allow certain questionable govt intrusions. i'm not sure it does. maybe. but i believe republicans are ultimately asserting something much more radical: the only way to defend ourselves in the post-9/11 world is to impose totalitarian style government. anything less, including enforcement of traditional constitutional norms, leaves us too vulnerable to future terrorist attacks.

three questions about this. first. is this what republicans are ultimately asserting? second. if so, is it accurate? third. if it's accurate, what result?

i welcome input on all three questions. my answer to the first question is yes. my answer to the second question is probably not. the third question reminds me of the old patrick henry aphorism,' give me liberty or give me death.' i googled the phrase and found the text of henry's entire speech. it's here. i'll quote here the last short section of the speech because it's most relevant to our current discussion. patrick henry on march 23, 1775:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

the constitution is the modern embodiment of our liberty. so perhaps it is, in a sense, a suicide pact.

what's so war about civil anyway.

2006-03-10T09:05:00.000-08:00

we have truly lost our way in the world when we argue over whether a foreign country is at war with itself. it appears the dept of defense is gearing up for just such an argument now. the cnn.com story is here.

apparently we can't figure out whether iraq is engaged in a civil war. we're relying on 'experts' to tell us when this war begins. then we're gonna move out of the way and let iraqi security forces handle the civil war to the best of their abilities. nevermind that preventing civil war was supposed to be the main reason we've kept so many us troops in iraq. am i wrong here?

in our defense, we have a hard time defining all war, not just civil war. when was the last time the us officially declared war on another country? wwii. that's right. over fifty years ago. funny thing, isn't it? seems like we've had several wars since then. yet none has involved an official declaration. the 2003 authorization of the use of military force that led to war in iraq is the closest we've come to a declaration of war. congress in the 1970s attempted to deal with the increasing use of 'peacetime' military force with the war powers resolution. the resolution is of questionable constitutionality. in any event the wpr has not been heeded by any president, vp, or secr of defense since it was signed into law. even i don't follow the wpr. you may have violated the wpr yourself without realizing it.

is a definition of war worth getting a handle on? is this something we should be working towards or thinking about? how will we know when civil war in iraq begins? if it never begins then how does it end? it troubles me to read accounts like this:

"There is a high level of tension in the country, sectarian tension and conflict," Rumsfeld said. But it has not yet become a civil war "by most experts' calculation," he added.

what experts? he's the secr of defense. shouldn't he be the expert on whether there's a war going on? are we still at war with iraq? in iraq? what do the experts say?

what does it take to make a civil war anyway? can i do it by scrambling two eggs and a piece of chorizo? do i have to kill people? my own countrymen? how many? how fast?

these seem like reasonable questions that ought to get answered. i'll start by suggesting that civil war in iraq has already started. consider this. assume sectarian violence in iraq continues to escalate as is it has in recent weeks. assume this violence reaches such astronomical levels that no 'expert' can deny it is outright civil war. looking back, when would we say that civil war began? i would say the day of or day after the mosque bombing. perhaps these have only been early stages of civil war, but it is civil war nonetheless.

so how do we stop it from going forward? from cnn.com:

[Rumsfeld] said the key to avoiding civil war is for Iraq's political leaders to form a government of national unity.

complete and utter tautology. having a govt of national unity means there is no civil war. isn't the definition of civil war (at least part of it) the lack of such a unifying govt? to paraphrase rumsfeld's solution: the best way to prevent a civil war is to prevent the civil war. the best way to have stopped the us civil war would be for lincoln and davis to have formed a government that unified the north and south. you freaking idiot. you've answered the question 'what?' answer: stop the civil war. the question is 'how?' answer: i have no idea. and apparently neither does rumsfeld.

what's so civil about war anyway?

lunatics take over asylum.

2006-03-09T14:21:00.000-08:00

immigration in the us is broken. i'm not talking about all the problems and fixes now. that's a long post for another day. my focus here is on a small area of immigration law: asylum.

if two recent circuit court decisions are any indication, us immigration judges and the board of immigration appeals have completely adbicated their responsibility to afford asylum petitioners a fair hearing. i first mentioned the two cases recently in reference to jared's work with elderly refugees claiming social security. i'll discuss one of the circuit court decisions now. the decision itself is here.

a brief review of the facts. xue came to the us from china six years ago and promptly applied for asylum. in his petition he relays the following story:

xue and his wife, a school teacher, had a son and registered the baby boy with local authorities as required by law. as a result, the authorities forcibly implanted an iud (birth control device) in xue's wife. xue paid a doctor to remove the iud because they needed more children to help tend their farm. xue's wife got pregnant again. she went into hiding. she had another son. she gave the baby boy to another villager. she returned to work. then the authorities implanted another iud in xue's wife. xue paid the doctor to remove the iud again because xue and his wife wanted a daughter. xue's wife got pregnant again. she went into hiding. she had a daughter. she gave the baby girl to another villager. she returned to work. then an anonymous villager reported xue's and his wife's activities to the authorities. the authorities forcibly sterilized xue's wife. the authorities had xue's wife fired from her job. the authorities forced xue to pay for their daughter to attend otherwise free public school. the authorities threatened xue with imprisonment. xue decided it was time to hit the road. xue came to the us and promptly filed for asylum.

a brief review of the procedure. xue had a hearing before an immigration judge. these hearing are formally adversarial; xue's counsel argues for asylum and an ins lawyer argues for deportation. but the judge may actively participate as well; asking questions of witnesses to clarify what s/he does not understand. xue was the only witness at his hearing. xue's wife submitted a written statement of the facts similar to xue's in every relevant aspect. chinese authorities from xue's village did not show up to testify that they had forcibly sterilized xue's wife and threatened to imprison him. at the hearing, xue told his story as it is described in his petition for asylum. the ins lawyer asked xue a few irrelevant questions. the immigration judge asked xue zero questions.

the immigration judge rejected xue's petition for asylum and ordered xue deported because the judge did not believe xue's story. the judge gave three reasons for finding xue incredible. first. if xue and his wife needed help tending their farm, then it made no sense to give their newborn children to other villagers. second. there is no way xue's wife could have hidden two pregnancies from such intrusive chinese authorities. third. standard chinese practice is to forcibly sterilize a woman after her third child, but according to xue the authorities only learned about two of his wife's three pregnancies.

xue appealed to the board of immigration appeals. the bia rejected xue's appeal in short order. without asking for clarification, an immigration judge may deny asylum based on lack of credibility if discrepancies in the witness' story are self-evident and could not possibly be explained.

this is pathetic. let's call a spade a spade. that guy is a 'deportation judge,' not an immigration judge. is it possible xue could have explained the three discrepancies cited in the denial order if the judge had asked xue for clarification? the obvious answer is yes. the three points are hardly discrepancies in the first place. i could explain them and i've never even been to china. first. xue and his wife gave their infant children to other villagers because infants can't help tend a farm. you freaking idiot. second. the authorities didn't notice his wife's pregnancy because she went into hiding until the babies were born. were you even listening to xue's testimony? did you read his petition? third. chinese authorities forcibly sterilized xue's wife after her third child because that's their standard practice. maybe xue didn't realize they knew about all three children. maybe they just got trigger happy and didn't wait to discover baby number three. who cares? are we really splitting freaking hairs here? we're talking about a man who would be imprisoned for wanting children by a government that just forcibly sterilized his wife.

fortunately, the second circuit court of appeals agrees xue could possibly have explained these issues. that court reversed the immigration judge's denial of asylum. it was inappropriate for the judge to find xue incredible without asking him to clarify because xue could possibly have explained the 'discrepancies' in his story. i'd prefer a more scathing opinion scolding the immigration judge's reprehensible conduct. but this i'll take.

the lunatics have truly taken over asylum.

i plead the fourf. one. two. three. fourf.

2006-03-08T09:33:00.000-08:00

(tron kills me!)

republican senators today proposed a new law that would authorize president bush's contoversial no-warrant nsa spying program. the cnn.com story is here. that's all well and fine. such a law would cure the statutory problems with the program under fisa (foreign intelligence surveillance act of 1978). but neither this law nor any other short of constitutional amendment can cure what i believe to be the more significant legal obstacle to bush's tactic: the fourth amendment.

the mainstream media has paid scant attention to fourth amendment arguments in its otherwise vast coverage of the nsa spying program. the explanation for this is probably simple. the fourth amendment arguments are difficult to explain and understand; it's easier to say there's a federal statute that regulates this conduct and bush isn't following it. but if these no-warrant wiretaps violate the fourth amendment, then no amount of congressional legislation can bless the nsa program.

i'll briefly outline the fourth amendment issue. then i'll address one of the government's arguments, the so-called 'special needs exception,' in more detail.

the fourth amendment prohibits unreasonable searches and seizures. it also requires authorities to obtain a court warrant based upon probable cause of criminal activity prior to conducting most searches and seizures. this requirement provides a judicial check against unreasonableness. hopefully this much is review for most.

in katz, the supreme court decided that a wiretap is a fourth amendment search requiring a court warrant, at least when used for domestic intelligence surveillance (like when the government is investigating the teamsters, local communist groups, or 'tomorrow and probably' readers). the court explicitly left open the question whether warrants would be required for wiretaps in the context of foreign intelligence surveillance. that is the issue the court would now face. does the fourth amendment require the nsa to obtain a court warrant based on probable cause of criminal activity before wiretapping for foreign intelligence surveillance?

the government says no. they claim, among other things, that the 'special needs' (aka 'administrative search') exception to the fourth amendment alleviates the normal warrant requirement. how about that? i say rule. you say exception. i say potato. you say putoto. the exception has been applied in the past to uphold warrantless drug-testing of high school students, warrantless searches of impounded cars, and warrantless sobriety checkpoints on roads. the exception also probably justifies those friendly tsa screeners at the airport.

the threshold issue in any special needs case is whether the government's search serves a special interest beyond ordinary criminal law enforcement. the government probably has such an interest in conducting foreign intelligence surveillance. we want to know what these folks are doing, regardless of whether they're violating any of our criminal laws. this threshold issue being satisfied, the court would balance the government's special interest against the interests of the poor folks tapped. all the factors normally considered by the court in its balancing act cut against application of the special needs exception in this case.

first. there is no notice to those who will be and are tapped. the government may argue there is notice that some americans will be tapped, just no notice of which ones. they might analogize the sobriety checkpoints in this regard. this argument is unavailing. there is some level of notice about sobriety checkpoints. you might be subject to one if you are driving, driving at night, driving at night in the bar district, etc. anyone using a telephone could be subject to a wiretap. furthermore, the subject of a sobriety checkpoint knows when he has been searched, whereas the subject of a wiretap may never get similar notice.

second. there is no consent to the wiretaps. high schoolers drug-tested or travelers at the airport consent to the administrative searches validated by the court, at least to the extent they choose to continue playing sports or flying. there could be no similar process for obtaining consent for the nsa wiretaps. it would obviously defeat the entire purpose.

third. the nsa program by its nature is not standardized. other special needs searches have been okayed by the court because they are applied in a standard format, thereby eliminating the risk of abuse. see random drug-testing, sobriety checkpoints, tsa frisks (sorry, soze, they say these are random too). but the nsa wiretaps those americans it believes are associating with foreign terrorists. this is not a standardized procedure. in fact, it screams abuse. i'm feeling an urge right now to abuse it myself.

fourth. the search may be quite intrusive. we don't have much information about the breadth of the spying program, but farbeit for the nsa to tell us they're not doing it very often. listening in on another's telephone conversation is a far cry from entering that person's home, the quintessential zone of privacy. but telephone wiretaps intrude significantly into our personal lives nonetheless.

in sum, i think the court would assume the search serves a special interest beyond general criminal law enforcement, but fails the balancing test for the reasons i gave. fortunately for the government, mr gonzales has some more arguments. i hope to address them in future posts. feel free to toss any out in the comments area.

there are so many amendments to constitution of the united states of america. i can just choose one. i choose the fourf. one. two. three. fourf. i plead the fourf.

art for wedding's sake.

2006-03-08T08:40:00.000-08:00

my favorite part of the wedding decoration so far is the guests' name cards. you know, those tented cards that sit on a table during the cocktail hour in alphabetical order by guests' names. each guest finds his/her card and it tells him/her what table to sit at. why, you might ask, is that my favorite part of the decoration? because our cards will be unique.

my aunt s in michigan is a fantastic artist. she's been painting for... well, i'm not exactly sure. but it's years. i can say that. she's been painting for years. one of her paintings (the best one yet if you ask me) hangs of carolina's and my living room wall. it was a christmas gift several years ago. last year, my uncle h and i built awesome shelves in their garage for them to hang her paintings on. uncle h installed them on their living room wall himself because i had to catch my flight home to dc.

but i digress. my aunt s has kindly offered to paint original flowers that we can use to decorate the guests' name cards at our wedding. we are honored to include her creative contribution.

she emailed me a few flowers so i could share them with all of you.

K with america.

2006-03-08T06:01:00.000-08:00

in law school, K stands for contract. most law students have abandoned such shorthands because they type their classnotes, i.e. play free cell and transcribe bits and pieces of class. i still use K and many other abbreviations cause i write my notes by hand. you know, with a pen. it's a hollow cylinder filled with blue or black ink that you can use to... ok, you get the point.

i've been hearing, reading, and thinking a lot about the upcoming federal elections in november. see my earlier piece about the partial-birth abortion ban, federalism, and some election 'spin.' many pundits now indicate that democrats are considering some sort of revised 'K with america' based on the republicans' clever 1994 tactic.

my first reaction at hearing this idea was entirely negative. we're trying to separate ourselves from republicans, right? how can we accomplish this if we're caught parroting their recent campaign techniques? but yesterday's washington post article about the democrats' struggle to define their message prompted to me to think more about it, and to get hold of the twelve year old republican K. it's about a two minute read.

i would normally just link the 'K with america' and suggest you go read it, but i think it's sufficiently important that i'm reproducing it in full below. i'll interject some commentary on the K's preamble in brackets and italics. anyways, my final conclusion is that democrats absolutely should present their own K. call it something different. make it look different. it goes without saying that the content of the proposals will be different (at least to the extent that democrats have not joined the republican party). but create some sort of K like this one and present it to voters before the election. without further ado:

REPUBLICAN CONTRACT WITH AMERICA

As Republican Members of the House of Representatives and as citizens seeking to join that body we propose not just to change its policies, but even more important, to restore the bonds of trust between the people and their elected representatives.

[goodness. you could almost just change the word republican to democrat here.]

That is why, in this era of official evasion and posturing, we offer instead a detailed agenda for national renewal, a written commitment with no fine print.

[remember this preamble as you read on. there really is no fine print. each proposal is remarkably clear and concise. some were unconstitutional as i mentioned a few days ago, but not for being misleading]

This year's election offers the chance, after four decades of one-party control, to bring to the House a new majority that will transform the way Congress works. That historic change would be the end of government that is too big, too intrusive, and too easy with the public's money. It can be the beginning of a Congress that respects the values and shares the faith of the American family.

[the part about shared faith makes me queasy. we republicans are all christian. elect us... the part about ending big, intrusive government that tosses around public money went out the window years ago. we've added govt agencies, increased govt spending, and recently blew millions of dollars on trailers that we can't use because they violate our own regs.]

Like Lincoln, our first Republican president, we intend to act "with firmness in the right, as God gives us to see the right." To restore accountability to Congress. To end its cycle of scandal and disgrace. To make us all proud again of the way free people govern themselves.

[i hate when republicans use that lincoln bit. i mean, how stupid do they think people are? does anyone think that lincoln would be a republican if he were alive today? that's pharcical.]

On the first day of the 104th Congress, the new Republican majority will immediately pass the following major reforms, aimed at restoring the faith and trust of the American people in their government:

FIRST, require all laws that apply to the rest of the country also apply equally to the Congress;
SECOND, select a major, independent auditing firm to conduct a comprehensive audit of Congress for waste, fraud or abuse;
THIRD, cut the number of House committees, and cut committee staff by one-third;
FOURTH, limit the terms of all committee chairs;
FIFTH, ban the casting of proxy votes in committee;
SIXTH, require committee meetings to be open to the public;
SEVENTH, require a three-fifths majority vote to pass a tax increase;
EIGHTH, guarantee an honest accounting of our Federal Budget by implementing zero base-line budgeting.

Thereafter, within the first 100 days of the 104th Congress, we shall bring to the House Floor the following bills, each to be given full and open debate, each to be given a clear and fair vote and each to be immediately available this day for public inspection and scrutiny.

1. THE FISCAL RESPONSIBILITY ACT: A balanced budget/tax limitation amendment and a legislative line-item veto to restore fiscal responsibility to an out- of-control Congress, requiring them to live under the same budget constraints as families and businesses. (Bill Text) (Description)

2. THE TAKING BACK OUR STREETS ACT: An anti-crime package including stronger truth-in- sentencing, "good faith" exclusionary rule exemptions, effective death penalty provisions, and cuts in social spending from this summer's "crime" bill to fund prison construction and additional law enforcement to keep people secure in their neighborhoods and kids safe in their schools. (Bill Text) (Description)

3. THE PERSONAL RESPONSIBILITY ACT: Discourage illegitimacy and teen pregnancy by prohibiting welfare to minor mothers and denying increased AFDC for additional children while on welfare, cut spending for welfare programs, and enact a tough two-years-and-out provision with work requirements to promote individual responsibility. (Bill Text) (Description)

4. THE FAMILY REINFORCEMENT ACT: Child support enforcement, tax incentives for adoption, strengthening rights of parents in their children's education, stronger child pornography laws, and an elderly dependent care tax credit to reinforce the central role of families in American society. (Bill Text) (Description)

5. THE AMERICAN DREAM RESTORATION ACT: A S500 per child tax credit, begin repeal of the marriage tax penalty, and creation of American Dream Savings Accounts to provide middle class tax relief. (Bill Text) (Description)

6. THE NATIONAL SECURITY RESTORATION ACT: No U.S. troops under U.N. command and restoration of the essential parts of our national security funding to strengthen our national defense and maintain our credibility around the world. (Bill Text) (Description)

7. THE SENIOR CITIZENS FAIRNESS ACT: Raise the Social Security earnings limit which currently forces seniors out of the work force, repeal the 1993 tax hikes on Social Security benefits and provide tax incentives for private long-term care insurance to let Older Americans keep more of what they have earned over the years. (Bill Text) (Description)

8. THE JOB CREATION AND WAGE ENHANCEMENT ACT: Small business incentives, capital gains cut and indexation, neutral cost recovery, risk assessment/cost-benefit analysis, strengthening the Regulatory Flexibility Act and unfunded mandate reform to create jobs and raise worker wages. (Bill Text) (Description)

9. THE COMMON SENSE LEGAL REFORM ACT: "Loser pays" laws, reasonable limits on punitive damages and reform of product liability laws to stem the endless tide of litigation. (Bill Text) (Description)

10. THE CITIZEN LEGISLATURE ACT: A first-ever vote on term limits to replace career politicians with citizen legislators. (Description)

Further, we will instruct the House Budget Committee to report to the floor and we will work to enact additional budget savings, beyond the budget cuts specifically included in the legislation described above, to ensure that the Federal budget deficit will be less than it would have been without the enactment of these bills.

Respecting the judgment of our fellow citizens as we seek their mandate for reform, we hereby pledge our names to this Contract with America.

[end of document]

there it is. pretty good, huh? i may disagree with the content of their policies, but i can't argue with their structure or presentation.

here's what i propose to do:

1) update the republican K to learn how many of these things were done. this is just background research and i would appreciate any help. point me to a website. i'll start with wikipedia.

2) more importantly, write our own K. we need a new title, new text, and new proposals.

put your ideas for a new K in the comments. no bad ideas here. if you suggest something i will research it and get back to everyone.

beyond the pale.

2006-03-07T18:51:00.000-08:00

i usually hate that cliche. but nothing else suits what i'm about to talk about. soze just blogged a piece about the westboroans, congregants of bill phelps' so-called 'church.' if these names don't ring a bell, the westboroans made a name for themselves protesting homosexuality at matthew shephard's funeral after he was brutally murdered and crucified on a fence for being gay. they also operate godhatesfags.com, a website i won't link here because i highly suggest you not visit it. hat tip (hate tip?) to soze for an interesting post and the additional research i requested.

the westboroans have recently taken to protesting at the funerals of fallen us servicemen and women. they claim that us soldiers die in iraq because the us harbors gays. seriously. there are no words. politics aside. religion aside. everything aside. a young person has died. a mother's son or daughter. a brother or sister. a mother or father. a friend. i'm not the most sentimental guy, but these protests make me wanna cry. i would support a person's right to protest at many inappropriate times and places, but not this. this is too much. i don't know if i believe in hell, but i believe in these people going there.

as of today south dakota, wisconsin, and indiana have responded with laws that ban or restrict the westboroan funeral protests. it's awful that the government has to get involved in this. an easier solution, and one that raises far fewer moral questions, would be to kill these people. unfortunately that's not an option. the westboroans have predictably threatened to challenge the funeral protest laws on first amendment grounds. ugh. times like these make me hate the first amendment. but alas, i can't be a fair weather fan. gotta do the legal analysis. i'll deal with the indiana law because it appears to be the most restrictive.

the indiana law prohibits 'picketing' during or within an hour of a funeral service. violation is punishable as a misdemeanor. here's how it would play out. westboroans picket at a soldier's funeral in indiana. indiana police properly arrest westboroan picketers for violating indiana's funeral protest ban. an indiana court convicts a westboroan of a misdemeanor for the violation. that westboroan appeals his case all the way to the us supreme court, arguing that indiana's funeral protest ban violates his first amendment right to free speech.

the law would probably withstand constitutional scrutiny.

first. the law restricts protected speech, anything you can put on a picket sign. nevermind that the westboroan's picket sign might constitute group libel against gays, unprotected speech under beauharnais. the court has not upheld a speech restiction based on group libel in over thirty years and i wouldn't expect it to now.

second. the law is probably content neutral. culpability is triggered by the act of picketing without regard to the content of the offender's picket sign. as such, the law would be subject to intermediate scrutiny under o'brien (emphasis here on the the time, place, and manner in which westboroan expresses his/herself). the law could probably satisfy intermediate scrutiny. first, the law is justified without reference to the contents of the westboroan's speech; the essential feature is the manner of protest at an inappropriate time and place. indiana has a significant interest in ensuring its citizens the opportunity to bury their fallen soldiers in peace (please comment if you don't believe this is a signficant government interest). the funeral protest ban is closely tailored to serve this interest because the restriction only applies during the funeral and one hour before and after. the funeral protest ban leaves open ample channels of communication; the westboroan remains free to convey his hateful message at a different time and/or place.

the westboroan would probably argue that this is an unconstitutional 'total medium ban' (the relevant medium being funeral protests). this argument is unavailing. any speech restriction viewed narrowly enough is a total medium ban. the argument thus becomes tautology, i.e. the law is unconstitutional because it restricts everything it restricts. funeral protests are probably not a constitutionally recognizable medium, especially where the protest is so unrelated to the funeral.

the more difficult question is how the court would rule if it found the funeral protest ban was content-based. culpability would now be triggered by the protesting aspect of the westboroan's conduct rather than its time, place, or manner. in fact, the indiana law defines 'picketing' extremely broadly as any protest within one thousand feet of the funeral service. a content-based law activates strict scrutiny by the court. is indiana's interest in protecting quiet, peaceful funerals for the families of fallen soldiers compelling? is the ban narrowly tailored to serve this interest? i tend to think yes to both questions. my guess is that the court would think no. satisfying strict scrutiny in the first amendment context is no easy task. i'll try to find a case where it's happened. none come to mind.

in any event. this legal analysis is an important part of protecting the right of families to bury their fallen soldier kin. emotional arguments are meaningless in court. without technical legal analysis the law would be struck down. but the analysis should not distract us one moment from the absolutely grotesque nature of these people's conduct. regardless of what any court says, let the westboroans' behavior pierce our usual sense of reasonableness and provoke a truly profound disdain.

ask. tell. above all, tolerate.

2006-03-07T12:37:00.000-08:00

the supreme court yesterday ruled in favor of the us government, the so-called 'solomon amendment,' and the military's bigoted 'don't ask, don't tell' policy. the cnn.com story is here.

first, some background. in 1993, congress passed clinton's 'don't ask, don't tell' policy which has been in effect for the us military ever since. the policy is pretty straightforward. don't ask a fellow servicemember is s/he is gay. don't tell fellow servicemembers that you yourself are gay. if the military finds out a servicemember is gay, s/he will be honorably discharged.

[there are all kinds of problems with adminstration of the policy. for example, many straight servicemembers unsatisfied with their service have claimed to be gay in high hopes of being honorably discharged. i'm not discussing these problems here though.]

the military recruits at law schools. law schools have policies that bar discriminatory employers from recruiting on their campuses, including those who discriminate on the basis of sexual orientation. law schools claim the military's 'don't ask, don't tell' policy discriminates against gays. law schools want to apply their anti-discrimination policies to bar military recruiters from their campuses. here's where it gets good. in retaliation congress passes the 'solomon amendment' which cuts off all federal funding to universities whose law schools bar military recruiters. not just federal funding for the law school; federal funding for the entire university. that is absolutely huge money for many large research universities.

forum for academic and institutional rights (fair) files suit arguing the solomon amendment violates the law schools' first amendment rights. at risk of being redundant (for some reason this has come up like five times recently), the first amendment prohibits the government from making you shut up, but it also prohibits the government from making you say things you don't want to. fair argued the solomon amendment required the law schools to associate with the military and endorse the military's anti-gay message which it found discriminatory and repugnant.

the suit was probably a loser from the get-go. as the court says, the amendment doesn't force law schools to do or say anything because they remain free to refuse the federal dollars and bar military recruiters. furthermore, admitting military recruiters on an equal basis as other employers is not an endorsement of the military's policy on gays; the law school remains free to actively voice its opposition to the policy so long as military recruiters are not barred from campus.

but the lawsuit was a fantastic political maneuver. first. before this, when was the last time you heard anything about 'don't ask, don't tell'? probably sometime around 1993. this case should help bring the issue back into mainstream american social policy debate. second. the supreme court basically told law schools to be as vocal as they can about their opposition to 'don't ask, don't tell.' my guess is they'll take that advise and run with it. official statements of opposition to the military's policy; well-organized protests when military recruiters come to campus; an onslaught of spirited op-ed pieces annihilating the discriminatory reasoning behind the policy. look for these responses and more in the near future.

and most importantly, participate in the national conversation. my guess is that liberals are probably more divided on 'don't ask, don't tell' than on most other social policy issues. but the issue has appeared largely settled for over a decade so there's been little debate. think the question through. absent homophobia and other unacceptable discriminatory influence, is the 'don't ask, don't tell' policy justifiable? necessary? desirable?

ask other people their views on the issue. tell them yours. let this case fuel a renewed national debate on a discriminatory policy that denigrates many citizens and servicemembers.

we, the people of missouri.

2006-03-07T08:15:00.000-08:00

in blatant disregard of the united states constitution, and with great disdain for the pronouncements of the united states supreme court, and with bold intolerance in our heart of hearts, and with a twisted understanding of history... do hereby proclaim the great state of missouri officially christian.

check out the text of missouri's proposal here.

trick question for you. when did this happen? twenty years ago? a hundred years ago? a hundred fifty years ago? nope. last friday. check it out here.

this is a house concurrent resolution, not a bill, so apparently it can't become a law. i'm actually not quite sure what that means. if it passes both houses of the state legislature then in my best estimate it's a law. in any event this is clearly more of a political statement than anything else.

the bill states that voluntary prayer in school and religious (at least christian) displays on public property are not a "coalition of church and state." that's funny because the supreme court has consistently said otherwise. i would point missouri legislators here, here, and here. oh and don't forget here. oops, i almost forgot here. i could go on but i don't that's necessary.

i'm tired of all this christian government in the us. i'm moving to france.

missouri... check.

soze @ why i'm mad.

2006-03-06T19:57:00.000-08:00

check out this great new blog called 'why i'm mad.' it's here. it's also linked over there on the side, but that doesn't draw enough attention to it. soze, the blogger and a regular commenter on 'tomorrow and probably,' is posting great stuff in the context of arab immigrant relations in europe, and arab issues in general.

note: soze's blog is not for the faint of heart. if you are offended by profanity, do not visit soze's blog. if you are offended by. . . . well, if you are offended by anything, do not visit soze's blog. because chances are he'll offend you, if anything does.

another note: don't read soze's blog at work while your co-workers are standing nearby. you're almost certain to bust a gut laughing. that's really not appropriate for work. you're supposed to be working. and working is never supposed to be funny. so you're not supposed to be laughing at work. i've made this mistake before and believe me it's embarassing. you have to quickly flip back to the work document you were reading/writing/editing and pretend something from the previous evening just struck you funny again. you look like an idiot basically.

a horse by any other name.

2006-03-06T12:52:00.000-08:00

bush's proposal for a so-called 'line-item veto' could offer the supreme court a handful of interesting issues; among them the nondelegation doctrine, and two new faces on a court that tied itself in knots last time it faced the line-item issue.

first, a brief history of the universe of line-item veto laws.

in 1996, as part of its 'contract with america,' the republican congress passed and president clinton signed the line-item veto act. that law authorized the president to 'cancel in whole' any new item of spending or tax benefit in a congressional bill after making a few specified findings. the law required that all federal dollars saved by cancellations be applied to reduce the national deficit. notably, the law did not require any congressional approval of the president's cancellation; pres gets bill from congress, crosses out what he doesn't like, signs whatever's left, and that becomes the law.

the purpose of such a veto power is clear. congressional statutes can be enormous documents including hundreds of spending and/or tax items. this format contributes to pork-barreling and undesirable tax subsidization. the line-item veto creates a line of defense against such congressional glad-handing.

west virginia senator robert byrd challenged the law on constitutional grounds. but the supreme court punted byrd's case, ruling that congressmen lacked 'standing' to sue because the law did not cause them 'actual injury.' (technical legal mumbo-jumbo; don't worry about this aspect). the supreme court is always skeptical when congressmen try to sue the president.

later, clinton exercised the line-item veto to slash federal spending otherwise bound for manhattan coffers. new york city sued and had clearly suffered 'actual injury'; they lost money as a result of the veto law. the parties briefed the case as a question of the 'nondelegation doctrine.' basically, the constitution authorizes congress and congress alone to make the laws. congress cannot delegate that responsibility to other government entities, including the white house. the line-item veto allowed the president to take a role in writing the laws in a manner not authorized by the constitution, or so the nondelegation argument went.

the supreme court held the line-item veto arrangement unconstitutional, but not on nondelegation grounds. in a somewhat mysterious ruling the court found the law violated the 'presentment clause,' which requires that bills passed by both houses of congress be presented to the president for signing. the line-item veto act authorized the president to unilaterally repeal a law (the cancelled spending or tax item) without the constitutionally required congressional involvement.

bush's proposal is markedly different. under his plan, the president could not unilaterally 'cancel' items s/he opposes in a bill. rather, the pres could pluck out those items, send them back to congress, and require the house and senate to vote on them again. i assume that if congress votes them down, then the pres can sign the leftover bill into law. if congress votes again to include the items, the pres can either sign the bill into law with the items or veto the entire bill.

you can probably see why the court would find this less objectionable than the 1996 law. here congress is involved in making the laws in a manner similar to that anticipated by the constitution. each item included in and excluded from a bill must be passed by both houses of congress before it can be signed into law by the pres.

in my estimate, the pres can effect a similar outcome even without this new law. he can pluck out those items he opposes, identify them for congress, and threaten to veto the entire bill unless congress votes to repeal the identified provisions. unless the pres is bluffing, congress must revote on the identified items if it wants the rest of its bill to become law.

but congress could just balk. if the pres vetoes the law then congress can try to override the veto. but if the bill's supporters had a supermajority to override a veto, then they would probably have revoted in support of the identified items in a rebuke the president. bush's proposed law is different because it would authorize the pres to force congress to revote.

there are almost certainly iterations of this arrangement that would be constitutionally troublesome, but i'll have to spend some more time running them through in my head. any suggestions are welcome and appreciated.

i had planned to discuss the court's new personnel and present some possible outcomes in this post. but i think it's looking a bit long already. what do you think? ok then. we're agreed. but i should explain the title of the post. president bush did himself no favors by referring in his proposal to a 'line-item veto.' the mere mention of the phrase sends constitutional chills down my spine. a horse by any other name would probably pass muster.

the broadside of a barn.

2006-03-06T07:12:00.000-08:00

william saletan aims, fires, and misses the point. (how much time must pass before everything stops screaming dick cheney joke in my head?)

in his washington post sunday outlook piece, saletan argues that abortion rights groups should focus on eliminating the need for abortions, rather than defending roe v. wade which established the right to have an abortion. saletan writes:

But only the abortion rights movement can lead the way beyond [Roe]. . . . It must be up to the reproductive rights supporters to give the public what it wants: abortion reduction within a framework of autonomy. . . . Real ambition isn't about fortifying the territory you've won. It's about moving on so that the territory behind you no longer needs defending. The territory we need to leave behind is Roe. Maybe the best way to end the assault on Roe is to make it irrelevant.

saletan also suggests that abortion-rights groups should at least focus on protecting the right to safe, legal abortion early in pregnancy because that's what the public supports. a brief fact check and retort to mr. saletan here.

first. abortion rights groups are already focused on eliminating the need for abortions. that saletan seems unaware of this fact demonstrates his obvious lack of research for the article. naral's major initiative in the last year is called prevention first and it focuses entirely on eliminating the need for abortions. fitting that mr. saletan's article comes out this week because tomorrow is naral's prevention first day of action. among the project's goals are insurance coverage for birth control, family planning services, stopping pharmacists from refusing to dispense birth control, increased access to the morning-after pill, age-appropriate sex-ed, and teen pregnancy prevention. get more info on the initiative here and a timeline of relevant events here. is this the kind of focus you were talking about, mr. saletan?

second. working for increased access to contraception cannot solve the problem because it only changes the topic of debate. the same organizations now arguing about abortion would simply argue about contraception instead. anti-abortion groups do not have a normative preference for fewer abortions, they have a moral absolutist demand that the law enforce their religious tenets. among such tenets are opposition to abortion and contraception. see pharmacist refusal laws. see insurance plans' refusal to cover birth control. see abstinence-only sex-'ed'. see catholicism.

third. eliminating the need for abortions would not eliminate the need for abortion rights. it is a civil right. i can imagine what mr. saletan's position might have been in the wake of brown v. board of education. why don't black folks divert resources to improving black schools rather than fighting to force further integration? if black schools were as good as white schools then there would be no need to integrate. wrong. misses like 99.999% of the point. if black schools were as good as white schools, or even better, the right of black children to go to school with whites would be just as essential to a just society. it is a civil right, valuable in and of itself without regard to external conditions. similarly, if contraception was perfectly universal and effective, the right of women to have abortions would be just as integral. it's as much about respecting women's autonomy over their bodies as it is about women's current need to exercise the right.

fourth. there are plenty of spineless, moderate, straddle-the-fence democratic legislators who will argue vehemently in favor of safe, legal abortions early in pregnancy. there is no reason for abortion-rights groups leading the charge to pander to an ignorant mysoginist public by accepting a legal ban on second trimester abortions. we'll leave that sort of double talk to the politicians.

so mr. saletan, i suggest you join dick cheney on the farm. your aim is awful.

will ring.

2006-03-05T17:42:00.000-08:00

in addition to blogging, much work these days goes into planning carolina's and my august wedding in baltimore, md. just wanted to give a few updates and a little sneak preview. more details are on our website here.

below is corpus christi church where the ceremony will be held. it's on west lafayette across the street from maryland institute college of arts. they just added the wooden stage and grey slate floors, and refinished the pews. pretty classy, huh?

below is the george peabody library where we'll have the reception. it's on mount vernon square. for those out-of-towners, the peabody institute is the music conservatory for john hopkins university. in addition to using their library, a couple of peabody students will be performing at the cocktail hour. obviously there will be tables and flowers and all that on the day of the wedding. but this is how it looks empty.

the after-party will be at red maple, a lounge just two or three short blocks from the library. unfortunately i can't find a picture on the internet. it's pretty cool looking spot. normally a bit swanky for my taste (you have to wear leather shoes. in baltimore?) but ideal for our purposes here.

the menu is shaping up to be a smorgasbord of latino flavors. i mean that only in the figurative sense. the meal will not actually be a buffet. good heavens.

for folks arriving on friday or before, we're suggesting the peabody court hotel. it's just one block from the library and red maple. for more info and reservations go here. for folks just staying one evening, check out the marriot courtyard here. it's a five minute ride from the library. we have rooms blocked at both places. mention our last names to get the good rate.

that's all for now.

that's a good look.

2006-03-05T11:08:00.000-08:00

i'm not really into posting lots of pics on the blog. but i came across this one going through some old files this morning. thought it was funny.

go state! (you know I don't mean it like that)

2006-03-05T10:53:00.000-08:00

a couple days ago i discussed the possible legal implications of thomas monaghan's wild attempt to establish a colony of catholic puritans in florida. but i didn't fully develop or even explain the underlying legal question presented by monaghan's plan, the so-called 'state action' problem. i'll do that now.

some of this will be review for those who paid close attention during seventh grade civics class.

the us constitution is a government compact; a deal between you and the government. as such, the constitution's commands and restraints only apply to the government, not to private parties. the government cannot abridge your freedom of speech consistent with the first amendment, but a private party can. the government cannot discriminate against you on the basis of your race or national origin consistent with the fourteenth amendment, but a private party can (subject to state and federal anti-discimination laws unrelated to the constitution).

the threshold issue in any claim of constitutional violation is whether the defendant's actions constitute 'state action.' this is easy in most cases. the police violated your fourth amendment rights by unreasonably searching or arresting you. the military violated your right to due process of law by locking you in guantanamo bay for four years with no criminal charges or trial. but many cases are more difficult, seemingly combining aspects of public and private conduct. and if the defendant's conduct is ultimately deemed private, non-state action then there can be no claim of constitutional violation because, as stated above, the constitution only applies as against the government.

the marsh case i discussed earlier is one example of this issue. in that case the town was formally private, owned entirely by a corporation. but the supreme court determined that the town was essentially a 'public function' thus subject to the first amendment.

in evans v. newton, a racist georgia senator had died in 1911 and willed a local park to the city, subject to a command that the park be open to whites only. when brown v. board required integration forty-three years later, the city transferred title to the park to a private owner in order to avoid litigating the constitutional issues now raised by the arrangement. but the supreme court determined the park's operation was also a public function subject to constitutional rules, formally private ownership notwithstanding.

probably the most well-known state action case is shelley v. kraemer (thurgood marshall argued the case as a young naacp lawyer). i'm not going into the details here now. it's a great case. worthy of an entire post. if you ever wondered how they used to keep all those neighborhoods so white... well, check the case out.

now to the ave maria, fl case. americans have constitutional rights to buy and sell pornography, sexualized tv programs, contraception, and abortions. the government clearly violates the constitution when it interferes with these rights. but monaghan is not the government. he's a private individual or a private corporation as the case may be. so a plaintiff challenging monaghan's arrangement on constitutional grounds must first establish some relevant state action.

the cnn.com article is notably thin on the operational details of ave maria's administration. apparently monaghan plans to retain ownership of all non-residential property and require local businesses to conform to his puritanical rules as a condition of their leases. if litigation arises over these contract terms, it seems pretty clear that the courts of florida could not enforce them. such enforcement would in and of itself constitute state action. the more difficult question is whether a prospective lessee business can successfully challenge the arrangment now. probably yes, as i noted before. the operation of an entire town is a 'public function,' thus the operator is subject to constitutional norms.

there is one absolutely despicable flaw in this area of law. it has to do with the added requirement that the challenged action be a "tradionally exclusively public function." i'll discuss it in another post shortly.

does the state action problem in monaghan's case make any more sense after this explanation?

i give up.

2006-03-05T06:48:00.000-08:00

this angers me beyond belief. carolina and i listened to president bush's weekly radio address yesterday on c-span radio. the speech's content was hardly worth commenting on. i would note the president sounded extremely tired, perhaps even defeated. he has been traveling a lot recently so maybe its just jetlag.

c-span radio normally broadcasts a democratic response following bush's address. but a young sounding woman named francine busby came on after bush and immediately launched into a vicious anti-uae port deal rant. i assumed c-span was skipping the democratic response and the woman was some new republican pundit. i mean, she was pushing the national-security-can't-trust-an-arab-country-don't-recognize-israel-two-9/11-hijackers-security-security-security argument like someone was paying her to do it. turns out she's running for duke cunningham's recently-vacated seat in congress, so maybe someone was (paying her, that is).

here's the kicker. she's a democrat. and not just any democrat. the democratic front-runner for cunningham's seat. but the worst thing about it, her awful rant was the democratic response to bush's address.

i give up. democratic politicians have moved so far to the center (right?) that i can't even tell them from the republicans. in fact, i'm listening to john edwards and jack kemp on meet the press now and consistently preferring kemp's policy positions. give me a break. this guy ran for vp with bob dole. in a twenty minute spot, bob freaking dole's running mate sounds more liberal than a 2008 democratic presidential hopeful. kemp took a principled stand on the port thing. the arrangement was vetted by like a thousand committees and we shouldn't discriminate against arabs, especially arab allies. edwards' response? first we should immediately prohibit foreign governments from maintaining security of our ports. ultimately only american companies should be able to control port security.

where to even begin. first. this has nothing to do with port security. port security is the job of the us government. it has everything to do with port operations. like who's gonna hire the forklift operators from the international longshoreman's union. things of this nature. second. would we really be discussing a proposal to bar foreign governments from operating our ports if we replaced 'uae' with 'belgium' in the debate? can't trust those flemish. no. we wouldn't. the only reason we're having this ignorant discussion is because it's an arab country. it's not the country part that concerns people. it's the arab part. any suggestion otherwise is either disgustingly disingenuous or just totally myopic. third. so many american ports are currently operated by foreign companies. it's impractical to think we an just switch to all american companies. as i understand it this is not even a viable solution in the long run. i've got another smart idea for you, john edwards. why don't we just get rid of our ports? no ports, no issues with port security. problem solved. you freaking idiot.

the democratic response to the uae port scandal has been the most poorly handled operation since... well since i don't even know what. someone suggest something. the republican party was just about to stab itself in the neck over the port nonsense. they had the knife in hand and that deer-in-the-headlights look in their eyes. then the democrats run out guns blazing like they're gonna take someone down. but what do the democrats end up doing? shooting themselves.

republicans have officially ceded their monopoly on racist american politics. there are now no major non-racist political parties. fantastic. so when francine busby, totally unknown democrat from southern california, takes the national stage? when she's been honored with critical airtime to respond to president bush's weekly address? what does she do? what has she been waiting to tell america? screw arabs! national security! rah rah rah!

that's it. i'm waving the white flag. i give.

holiday.

2006-03-04T14:32:00.000-08:00

woo hoo!

spring break is here!

it's that time of the year when law students all over the country take the week off and head to cancun for booze, sun, and more booze. oh wait. sorry. that's undergrads and high schoolers. law school students do nothing. except blog! you thought i was an active blogger before. you ain't seen nothin yet.

i have a couple posts in the pipeline. one on an absolutely amazing asylum immigration case. another following up on my earlier domino's, monaghan, madness in florida piece. keep your eyes peeled for them.

in the meantime, grab your trunks and head for the beach, cause i'm sure not.

wal-mart moves on to plan b.

2006-03-03T13:24:00.000-08:00

arkansas-based corporation wal-mart has just announced it will begin stocking the morning-after pill aka 'plan b' in its pharmacies across the country. wal-mart previously carried plan b only in its illinois and massachusetts pharmacies, where it is required to do so by law.

wal-mart faced increasing pressure in recent weeks from activist groups (naral included) to stock the drug nationwide. today it succumbed to that pressure. but wal-mart says it will allow its pharmacists to refuse to dispense the drug if they have a 'conscientious objection.'

while i'm on the topic, i have some thoughts about all this pharmacy nonsense. druggists across the country are angry at the prospect of being forced to dispense birth control and emergency contraception to their customers. they assert a right to refuse to dispense drugs they find morally objectionable. some have argued they should be treated like doctors, who would never be forced to perform a procedure they considered immoral. interesting analogy.

i think pharmacists are actually more like that teenager at the movie theater who tears your ticket in half and directs you to your theater. i mean, a machine could do the job, but people might try to sneak into the theater without a ticket. imagine you go to your local theater and buy a ticket to see a new movie. say brokeback mountain. then, some uppity kid with a shiny red button-down vest and crooked bowtie refuses to tear your ticket in half and let you by. he says he disapproves of the content of the film you're trying to see.

are you kidding me? who are you? who died and made you the ultimate arbiter of movie morality? you're a cog, buddy. a mere mechanical obstacle to stop folks sneaking in to the theater. i've got a freaking ticket! tear the freaking ticket in half and let me through! don't even worry about directing me to the theater; i'll find it myself!

and that's how i would probably react if a pharmacist refused to fill my prescription. god bless wal-mart. kind of. amen.

a-roe-myth-erapy.

2006-03-03T12:09:00.000-08:00

i've been seeing all this crap recently about "the myths of roe v. wade." seriously, there are these adds in the dc metro and a pro-life group is even hosting a panel discussion about these myths. i've got one of my own.

yesterday i watched naral's educational dvd that provides pro-choice politicians with model answers to abortion-related questions.

one of the questioners (actors, really) asks why we don't just reverse roe v. wade and return the abortion issue to the states. the model answer focuses on the fact that abortion is a private medical decision too important to be left to individual states. i pointed out this morning that i think this is an incomplete answer. don't get me wrong. it's a good take; maybe the best pitch we've got right now. but it fails to recognize all the facts.

the argument is a bit complicated because of "federalism" issues that confuse many lawyers. federalism basically means that congress' powers are limited to what's explicitly granted in the constitution (war, tax, regulate interstate commerce, etc). all the other powers lie with the individual states. here's an intro and brief sketch i worked out this morning:

The Real Myth About Roe: Why the Abortion Issue Will Never be Returned to the States

Thirty three years ago, when the Supreme Court handed down Roe v. Wade, opponents of choice across the country cried foul. Among the myriad of complaints voiced about the decision was its glaring inconsistency with the federalist system established by our Constitution. States and local communities, the argument went, are the proper apparatus for resolving the abortion issue; not the federal government. Anti-choice advocates appropriately adopted that familiar mantra of the most virulent White Southern segregationists: States rights! States rights! States rights!

Federalism concerns remain a primary talking point in the current abortion debate. In anticipation of the 2000 presidential election, Ron Unz of the Wall Street Journal wrote:

The pragmatic solution to the abortion question is a healthy dose of federalism. Overturning Roe v. Wade would not mean the end of legal abortion in America; rather, it would allow each state or even each local community to reach its own equilibrium on the issue. In the process, we would not only be reaffirming that the words of our Constitution actually mean what they say, but invigorating the democratic process throughout the entire country.

And in a recent opinion piece for foxnews.com, Radley Balko expressed a similar sentiment:

The best solution [to the abortion issue] is robust federalism. Forgo Roe, and let each state set its own policies on abortion. Those for whom abortion is an important fundamental right can live in areas where abortions are widely available. Those adamantly opposed to any and all abortions can live in jurisdictions that ban the procedure. People like me could live in communities where our tax dollars won't be funding abortions.

Returning the abortion issue to the states for resolution clearly appeals to many moderate social conservatives and Federalist Society-types. Even pro-choice commentators frequently express relief that California, New York, and other like-minded states will continue to allow safe, legal abortions even in the event Roe is overturned. However, recent developments in the abortion controversy demonstrate that this outcome, or “solution,” is extremely improbable.

The Supreme Court recently agreed to consider the constitutionality of Congress' so-called “Partial-Birth” Abortion Ban, signaling its intent to uphold the law. The Federal Abortion Ban clearly contravenes federalism principles expressed recently by the Court in United States v. Lopez and United States v. Morrison. But if the Court upholds the Federal Ban in spite of these principles, as most believe it will, Congress will have carte blanche to pass any abortion regulation that suits it without Commerce Clause limitation.

Recent legislative action in South Dakota has prompted many opponents of choice to assert that “the Supreme Court is prepared to overrule Roe.” Following this pronouncement is the oft-repeated but ill-reasoned phrase, “and return the abortion issue to the states.” The reality is that if the Supreme Court reverses Roe, Congress will probably be just as free as the states to enact an outright ban on abortion throughout pregnancy.

If Congress enacted such a ban, liberal and conservative states alike would be powerless to protect their citizens’ right to safe, legal abortions. Under the Supremacy Clause of the U.S. Constitution, a congressional ban would trump even a state constitutional amendment guaranteeing the state's citizens the right to choose.

This reality should have significant consequences in November when voters head to the polls to elect their federal representatives. The real battleground for defending choice is Congress. And the real myth about Roe is that reversing it will return the abortion issue to the states.

Supreme Court Signals its Intent to Uphold Federal’ ‘Partial-Birth’ Abortion Ban
[most commentators believe Court intends to uphold FPBAB]

Upholding the Federal Ban Would Give Congress Carte Blanche to Regulate Abortion
[upholding FPBAB means totally abandoning Commerce Clause limitations on congressional power imposed in Lopez and Morrison]

If Roe Was Reversed, Congress and President Bush Would Try to Ban Abortion Throughout Pregnancy
[substantive due process right to privacy no longer protects right to abortion; federalism principles no longer prevent Congress from regulating purely intrastate abortions; Bush and Congress are crazy as sh*t]

States Would be Powerless to Protect Their Citizens’ Right to Safe, Legal Abortions in the Face of a Federal Ban
[Supremacy Clause]

Realizing the Potential Consequences of the November 2006 Federal Elections
[before voters return to the polls in 2008, Congress and Bush could ban abortion throughout pregnancy across the nation without constitutional opposition]

i'd appreciate any comments on the ideas expressed in this draft outline.

atza spicee magazina.

2006-03-03T11:04:00.000-08:00

get ready for another blog-pas (that's a faux pas on a blog, for those not paying attention earlier).

this is not a self-indulging request for you to comment on my posts, but it's almost as bad. this is an other-indulging request for you to check out a new quarterly magazine that hits the press in may.

bene is shaping up to be a classy review of all things italian. that's food, wine, travel, etc (what else is there?). check out their website here. you can pre-order a subscription here. i've had a look myself and i gotta say i'm impressed. for purposes of full disclosure, colby works on the magazine. hence my shameless pitch here. but in all seriousness the website looks really cool and i implore all of you to have a look. if you're interested subscribe. if not, well then don't.

christianofascism.

2006-03-03T08:02:00.000-08:00

update. the mississippi house did not wait until next week to pass the abortion ban that came out of committee on wednsday. the house passed that bill this morning by a vote of 94-25. not a single member rose to speak in opposition. but thankfully, they did agree to add exceptions for cases of rape and incest. i guess mississippi is more liberal than south dakota.

i said earlier that i can't understand how you could justify denying a raped woman access to a safe, legal abortion. well, here's the heart of the debate over those exceptions, from the ap:

Rep. Deryk Parker, D-Lucedale, argued that there should be no abortions allowed in cases of rape or incest.

"God does not make mistakes," Parker said. "Regardless of how conception takes place, life begins at conception."

hard to argue with that. it was god's will that a man should rape you and impregnate you. tough break for you. but hey, god's will is god's will. it reminds me again of the pope's command on ash wednsday that catholics should use lent to meditate on god's will. deryk parker meditated, and he realized that god's will is for man to rape woman. interesting take. i normally despise recourse to anecdotal arguments, yet i can't help but wonder whether parker would express the same view if his daughter, or wife, or mother was brutally raped and impregnated. still god's will?

parker's take is evil. in fact, deryk parker is evil. i mean that in both a religious and secular sense. to suggest that god wills a man to rape a woman is socially irresponsible beyond belief. it also completely debases everything that is decent about religion. check out mr. parker here and email him a nasty message at dparker@mail.house.state.ms.us.

alabama and missouri also have unconstitutional outright abortion bans racing through their state legislatures. these acts are entirely symbolic. the supreme court only needs one state, one statute, one case. there is no practical advantage to having more state bans. and obviously none of them can go into effect until a case works its way through lower federal courts to the supreme court.

[update: kentucky, ohio, georgia, indiana, rhode island, south carolina, tennessee, and west virginia have entered the fray with proposed bans on abortion throughout pregnancy making twelve states in all]

your end of the bargain.

2006-03-02T14:54:00.000-08:00

i post. you comment. that's how it works. it's not all fun and games.

don't get me wrong, i enjoy blogging just for the sake of blogging. but i'd love to hear everyone's thoughts and ideas on... well, on my thoughts and ideas. a bit narcissistic, i know. but hey.

moral of the story is: comment. even if it's just to say you're not interested in what i'm writing. comment.

utopia in florida.

2006-03-02T09:45:00.000-08:00

this is the best story i've heard in a while. make that a long while.

the pope really set these folks off when he told them yesterday to do god's work during lent.

thomas monaghan, founder and former owner of domino's pizza, is building his own town near naples, florida. the town will house the 'ave maria' catholic university, and will go by the same name. the picture looks nice, no?

here's the kicker. monaghan vows that ave maria town will be ruled by the strict principles of the roman catholic church. pharmacies will not sell condoms or birth control; hospitals will not perform abortions; stores will not sell pornography; cable tv stations will not air sexualized programming. monaghan will control the town and its inhabitants like so many mindless marionettes.

florida governor jeb bush loves the idea. he says it's gonna be a place where faith (only catholic) and freedom (to do what the pope tells you) collide to form a community (prison) of likeminded (repressed? brainwashed?) citizens.

the florida attorney general also supports the plan, but recognizes that there will probably be legal challenges to its operation. why? a little thing called THE CONSTITUTION!!!! yesterday i noted that, despite much protest, utah is not a church; well, unfortunately for governor bush and cardinal monaghan, neither is florida.

this arrangement should be struck down by the federal courts under marsh v. alabama. in marsh, the gulf shipbuilding corporation owned and operated a town in alabama called chickasaw. marsh, a jehovah's witness, was convicted under alabama's trespass law for distributing religious literature without gulf's permission and against its wishes. the supreme court reversed marsh's conviction, reasoning that an ordinary town could not have prohibited her activites (free speech!), and the corporation's ownership of the town did not change the analysis. justice black wrote:

Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, ther more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Thus, the owners of privately held bridges, ferries, turnpikes, and railroads may not operate them as freely as the farmed does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation [i.e. constitutional mandates, including the right to privacy for contraception and abortion, and free speech for pornography]. When we balance the Constitutional rights of owners of property against those of the people to enjoy the freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.

while this "public function" analysis has been significantly eroded in a variety of other contexts, it has remained steadfast in the context of privately-contolled towns. the state of florida cannot force businesses in lovely ave maria to provide things like abortions, contraception, pornography, or good tv, but neither can it take any part in monaghan's puritanical attempt to exclude them.

florida... check.

social security over (is a?) free lunch.

2006-03-01T18:38:00.000-08:00

i had lunch today with jared, friend and delegate to the gulc student bar association. jared had pizza; i had leftover manicotti that carolina made last night. mmmm. manicotti.

anyways, he was explaining some really classy work he's doing at the intersection of social security and asylum immigration. i thought i would share it.

so, when people escape unfavorable conditions in their counties and make it to the us, they can apply for asylum. if asylum is granted, they become refugees here in the us. then, if they're elderly, they can apply for social security (i think this would have to be social security disability, because by the nature of the facts they haven't paid in). apparently, elderly refugees are automatically eligible for social security for five years. if they're not us citizens after five years, they're no longer eligible. the thing is, they're elderly, so getting citizenship is not always the easiest thing in the world, and sometimes it just plain doesn't happen.

as i understand it, jared is doing practical work with some of these folks, in addition to some scholarly writing on the issues raised by their situation. my hope is to have him guest blog a little bit about it here soon.

does anyone know how to open up the blog to other posters?

in the meantime, i'd think there are a few issues to consider:

1) what is the policy behind the five year rule? it's certainly a strong incentive for elderly refugees to hurry up and get citizenship. is this an important goal? is denying social security benefits a reasonable penalty for failure to comply?

2) what claims for benefits might these folks have now? the five years are up, and benefits are being cut. is there any possibility for redress?

3) how, if at all, should the policy be changed to reflect the realities of many elderly refugees' situations? should the rule be scrapped entirely? modified?

immigration and asylum are extremely interesting areas of law these days. i would highly suggest that anyone interested check out two recent circuit court opinions, both reversing lower courts' denial of asylum here and here.

anyways, it was great talking social security with jared over my (there's no such thing as a) free lunch.

doing god's work in mississippi.

2006-03-01T14:11:00.000-08:00

today, the pope told his followers to meditate on god's word and do charity during lent. fitting it seems, that the mississippi house public health committee took that opportunity to pass a bill that would ban abortions throughout pregnancy, with a limited exception for life endangerment. again, no exception for victims of rape or incest. the full mississippi house of representatives could vote on the bill next week, and then it would be passed to the senate. realistically, such a bill is unlikely to face significant opposition in either branch of the mississippi legislature.

comforting, though, might be the fact that mississippi governor haley barbour supports access to safe, legal abortions in cases of rape and incest. but alas, he doesn't really care that much, and indicates he'll sign the bill as it is. how's that for standing behind your principles. way to go governor. i'd suggest you email him, but unfortunately that part of his website is currently "down".

is this really god's work? i can almost, almost, almost wrap my mind around the desire to ban abortions throughout pregnancy. i think it's immoral to do so, against the public interest, draconian, sexist, and undemocratic; but i can almost understand it. what i absolutely cannot fathom is how you justify applying that ban to victims of rape and incest. to my mind, forcing a pregnant victim of rape and incest to carry the pregancy to term and bear that child is one of the most hateful, despicable, feeble-minded thoughts going through americans' heads (and i know there are plenty).

mississippi will probably not be the only state to copycat south dakota's awful lead. i would encourage everyone even at this early stage to speak out. emailing governors rounds and barbour is integral, but obviously of limited utility given that we don't live in their states. email your state legislators, your governor, and let them know that you do not want this in your state.

finally, i'd be remiss if i didn't thank the mississippi public health committee for their work. you've made my job of making red states look stupid so very easy. good lookin' out, partner.

mississippi... check.

at least it wasn't crack.

2006-03-01T10:57:00.000-08:00

this story is shocking. really, shocking.

a second-grader in philadelphia brought powder cocaine to school and passed it around amongst her classmates. one child claimed to have eaten some, but she checked out fine at a local hospital. ain't peer pressure a bitch.

anyways, a spokesman for the local school district had this to say:

We're outraged that some parent or guardian of a second-grade student in Philadelphia would allow their child to bring in powdered cocaine to a school.

hey, at least it wasn't crack.

goin each and every place with a mic in my hand.

2006-03-01T10:15:00.000-08:00

looking back over my recent posts, i've noticed a pattern.

well, two patterns really.

first, red states are coming up with stupid new ideas every day. virginia forbids doctors from asking questions related to their patients' health; south dakota opts to protect the reproductive rights of rapists, not women; utah proclaims itself a church, not a state, and disclaims the "theory" of evolution. there's nothing i can do about this pattern, sorry.

second, i blog every day about the stupid stuff they're doing in red states. so, i've decided to keep this pattern going. i'll take this blog, and you along with it, on a national tour. each day i will blog about a stupid thing that some red state is trying to do.

utah goes bananas for evolution.

2006-03-01T09:51:00.000-08:00

(this picture is in utah, i swear; i got it off yahoo images).

critics of evolution (fundamentalist religious zealots) faced a setback (rude "awakening") this week in utah (red state), when state legislators (god bless them) rejected a bill that would require public school teachers (minions of god) to tell students (impressionable as they are) that evolution (reality) is a mere theory not endorsed by the state (church?) of utah.

outside the utah house of representatives, representative chris butters, who sponsored the bill, proclaimed:

I don't believe that anybody in [the utah house] really wants their kids to be taught that their great-grandfather was an ape.

i remember when they taught me in school that my great-grandfather was an ape. it was so traumatic. i'd never met him, but i'd seen pictures. i'd always thought he looked like a man (and a handsome one at that), not an ape. it took me years to come to grips with the reality that i am only three generations removed from apes. or did i misunderstand what the teacher was saying?

anyways, chris butters, your teacher may have told you that your great-grandfather was an ape, but mine didn't. in fact, your great-grandfather may have been an ape, but mine wasn't. he was a man, and evolution should not be labeled a mere theory. and furthermore, utah can't force public school teachers to tell students that utah does not endorse the theory of evolution because utah is not a church, as much as i'm sure you'd prefer things were otherwise.

south dakota, a classy state for rapists

2006-02-28T10:37:00.000-08:00

as many of you probably already know, the south dakota legislature last week passed a bill that would ban abortion throughout pregnancy, with a limited exception for protecting the pregnant woman's life, but no exceptions for cases of rape or incest. heads up to colby for that great email to governor rounds. rounds hasn't signed the bill yet, so it's not too late to email him yourself here.

in any event, the entire country (including president bush) is up in arms that south dakota's bill lacks an exception for victims of rape or incest. how can you require a victim of rape or incest to carry the resulting pregnancy to term, people wonder.

i agree that south dakota's conduct is appalling, but it shouldn't be surprising. for decades, south dakota has demonstrated a continuous and extreme hostility to pregnant victims of rape and incest.

in 1978, south dakota passed a law that prohibits public funding for abortion except in the case of life endangerment. so, south dakota pays for prenatal care and childbirth services for Medicaid-eligible victims of rape and incest, but not for them to have an abortion. this restriction on funding violates the federal hyde amendment, which requires states receiving federal medicaid dollars to fund abortions in cases of rape, incest, and life endangerment. south dakota's law has never been challenged in court, making south dakota the only state in the union currently in violation of this aspect of the hyde amendment.

another south dakota law, enacted in 1972, requires pregnant minors to notify parents before having an abortion, with an exception for life endangerment and substantial risk of loss of major bodily function. so, if the girl is about to die or need an organ removed, the doctor can perform the abortion without telling her parents. he still has to tell her parents afterwards. the law includes no exception for cases of rape, incest, or child abuse.

south dakota law also allows a pharmacist to refuse to fill a prescription for emergency contraception. again, the law does not include an exception for rape or incest.

here's how it works in south dakota:

a 14 year old girl, abused at home by her parents, is raped by her uncle. a doctor writes the girl a prescription for emergency contraception, but the pharmacist refuses to fill it. the girl explains that she was raped by her uncle, but the pharmacist doesn't case; south dakota law protects him. later, the girl goes to another doctor to have an abortion. the doctor informs the girl that he must notify her parents before performing the abortion. she explains that both of her parents beat her, and will definitely beat her if the doctor tells them she is pregnant. the doctor doesn't care; south dakota law ties his hands. the girl explains that she's pregnant because she got raped by her uncle, her father's brother. the doctor doesn't care; south dakota law requires notification. so, the doctor notifies the parents that he will perform an abortion on their daughter. then, the doctor realizes that the girl and her family are on medicaid, so he explains that the state doesn't pay for abortions unless the girl's pregnancy threatens her life, which it doesn't. the girl explains that she is 14, her parents are poor, and she can't afford to pay. the doctor doesn't care; south dakota won't pay. she explains that she was raped by her uncle. the doctor doesn't care.

no emergency contraception, no abortion. the uncle is thrilled; he's gonna be a dad! south dakota doesn't care.

south dakota, still protecting the reproductive rights of rapists in 2006.

all my posts

2006-02-27T18:54:00.000-08:00

will be in lowercase letters from now on. something about writing in lowercase letters makes the words come easier; it's liberating. at first, it made me feel kind of dirty, like i was doing something i knew i shouldn't be, something illicit. you never realize how engrained punctuation is in your head until it's gone; the punctuation, that is.

one more reason to hate virginia (is for lovers)

2006-02-27T13:06:00.000-08:00

these days, virginia legislators are dying to test the constitutional waters. manassas recently passed (then repealed) a blatantly unconstitutional, not to mention racist, ordinance that restricted the family members who may live together under one roof. the law clearly targeted latinos who in manassas often do not live in typical euro, nuclear-family settings. now, the virginia legislature wants to abridge the free speech rights of doctors by prohibiting them from asking their patients about guns.

doctors frequently ask their patients about gun ownership, especially in the case of patients with small children. the reason for this line of questioning is obvious: guns are potentially dangerous to people's health, which is a legitimate interest of doctors. doctors might similarly ask their patients about carseats or scissors.

under the new va law, doctors may not ask their patients verbally or in writing about guns in their homes, unless the patient is seeking medical care for a gun-related injury or first asks the doctor for advice about guns. pesky, inquisitive doctors could be accused of professional misconduct in violation of the state's medical licensing regulations.

this ought to be a clear violation of the first amendment right to free speech. the law clearly restricts speech; doctors are barred by law from asking a question at penalty of professional reprimand. the speech restriction is content-based; application of the law is triggered by the content of the doctor's question, guns in the patient's home. the restriction would therefore be subject to strict scrutiny, and it is difficult to fathom a compelling government interest to justify the speech restriction.

the only potential pitfall in this analysis is that the speech restriction concerns doctor-patient speech, which might cause a court to treat it differently. one relevant example that comes to my mind, perhaps not surprisingly, is government-mandated (biased) counseling for women seeking abortions.

as i noted in a recent post, the first amendment primarily bars the government from telling you to shut up, but it also bars the government from making you say things you don't want to say. a law that compels speech may also be found to violate the first amendment. planned parenthood made this argument in casey, to which the court responded:

All that is left of petitioners' argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.

there isn't much to work with here. clearly, the court finds that the speech compulsion is justified by reference to the doctor-patient relationship, but it's unclear what test if any should be applied in other contexts. perhaps the court suggests that medical licensing regulations restricting speech must only be 'reasonable' to withstand first amendment scrutiny, although this seems questionable in light of the court's skepticism of all content-based restrictions. i believe there is reason in the current case to apply greater scrutiny than reasonableness.

the mere requirement of a medical license carries with it a significant speech restriction. the government prohibits everyone without a medical license from certain speech (giving medical advice); the same for lawyers. the speech restriction is content-based; the law is triggered by the content of what is said (advice about medical condition). but this is not a direct restriction of speech; it is more accurately characterized as a necessary regulation of medical practice with an incidental burden on speech. i would, at most, subject this type of restriction to intermediate scrutiny under o'brien and the time, place, and manner cases.

in contrast, the prohibition on gun questions is a direct content-based restriction on speech. i would subject the restriction to strict scrutiny and strike it down as unsupported by any compelling government interest. i would also apply strict scrutiny to the mandated speech law at issue in casey. i would also strike it down, but there is a strong argument that the government has a compelling interest in insuring patients are properly informed about medical procedures they will undergo.

anyways, screw virginia.

summers-time and the livin's easy.

2006-02-27T10:49:00.000-08:00

another speaker at marriage preparation, a young religion teacher at a local private school, took her turn to defend larry summers, the recently departed president of harvard university. a moment of silence for larry summers...

the woman's talk, though entitled 'human sexuality,' should have been called 'reenforcing gender stereotypes in the modern era of uppity, wannabe-professional women.' she discussed the various biological and physiological differences between men and women that explain why men talk less, why she has to make her husband's lunch every day and pick up his dirty dishes and clothes after him. then, she lashed out at secular folks who want to deny that there are differences between men and women. as an example, she pointed to all the people who criticized larry summers just for recognizing the physiological differences between men and women.

now, in this young woman's defense, she explained that she did not know the content or context of summers' statements, nor was she even aware that he had resigned a few days earlier. obviously, she was not "up on" the larry summers story. i could easily criticize her for making an incendiary comment in front of a large audience about a topic she knew nothing about; this criticism seems especially warranted because the particular forum made it entirely inappropriate to respond in any way. but that would be too easy; my criticism goes deeper than that.

she had obviously heard something about the larry summers debacle, either through a friend or some brief news clip. whatever her source of information, i would focus on the moral she chose to draw from the story she heard.

she heard, at least, that the president of harvard university made some controversial statements about the differences between men and women, and that many people, especially women, were offended by what they considered to be his sexist statements. this young woman's reaction was to defend summers and his statements, to criticize his critics for overreacting, and to portray the entire event as representative of secular society's rejection of the differences between men and women. this strikes me as a strange and unwarranted reaction; one motivated by a desire to overemphasize the differences between men and women to reenforce gender stereotypes. is not to onus on the president of harvard university not to make sexist comments? not to offend the members of his faculty, especially the members of an underrepresented minority group on that faculty?

in any event, i did a quick google search and turned up another summers defense. this one comes from richard posner, US Circuit Judge and guru to conservative law and economics types:

The 'case' against Summers made by his faculty critics is a four-legged stool: . . . . and, most notoriously, he challenged the conventional left-liberal view that any underrepresentation of a group in a prestigious activity (e.g., women on the science faculties of Harvard) must be due to discrimination rather than to preferences or capabilities.

i've gotten hold of summers' speech and i'll break it down in a later post.

haters.

2006-02-27T09:31:00.001-08:00

i'll blog this post without capital letters, although in fact it combines a recent personal experience with my opinion on a legitimately newsworthy issue.

on saturday, carolina and i attended the second and final session of catholic marriage preparation. the first session had been pretty uneventful, with discussion centered around communication, love, and finances; it could have been secular marriage preparation. this saturday was, in contrast, quite eventful; discussion of contraception, natural family planning, and abortion.

near the end of the day, a visiting priest from florida gave a talk about the holy sacrament of marriage. in his highly politicized talk, he argued that marriage is under attack in modern society from a number of forces. first, marriage is under attack from no-fault divorce laws, which allow either party to the marriage to file for divorce and give the other party no opportunity to challenge the divorce. basically, you can file for divorce if you want to, and your spouse can't stop you. second, marriage is under attack from gay civil unions. the father offered no explanation of how gay civil unions are attacking marriage. he just said they are and moved on.

later in his talk, the father suggested that we engaged couples get more info from a marriage website maintained by rutgers university. he said the web address, then noted that we shouldn't confuse the rutgers site with another site about gay marriage, which has a similar web address. "i wouldn't want you to end up there, by accident," he cautioned. i considered this to be a potshot at gay marriage. it was a room full of straight engaged catholic couples; i don't think anyone would confusedly take marriage advice from a website about gay civil unions. you make your own judgment.

anyways, the father's talk led to a spirited discussion on the drive home and even after carolina and i were back in the house. here was my position: discriminating against gay people is the same as discriminating against Black people. that's it. that simple. from a moral and legal standpoint, there is no legitimate reason to distinguish between homophobia and racism. carolina took a more nuanced position, which i won't try to describe here (ask her yourself).

argue it either way. i'll say this though: i have the easier position, because i'm arguing that two similar things (discrimination against gays, discrimination against Blacks) are actually the same (just discrimination), while the other side must argue that two similar things are actually different. drawing lines in this context is much harder than erasing them. nonetheless, i'd love to hear what people think, especially if you believe there are legitimate reasons to distinguish between the two from a moral or legal standpoint.

DAMN YOU, GEORGE WILL

2006-02-27T08:37:00.000-08:00

Last week I mentioned Europe's hypocritical treatment of the Muhammed cartoons versus its treatment of Holocaust deniers. Free speech in Europe includes the right to print blasphemous depictions of Muhammed, but it does not include the right to deny the Holocaust, which is prohibited by law in many European countries. This is a double standard; one religious group is required to bear the brunt of offensive speech, but the sensibilities of another religious group are protected by law.

In the Washington Post Sunday Outlook, George Will makes the same argument:

Last week, while Europe was lecturing Muslims about the virtue of tolerating free expression by Danish cartoonists, Irving was sentenced to three years in prison [for denying the Holocaust during two public speeches in 1989].

Mr. Will makes the argument that Irving's imprisonment is not only unnecessary, but also counterproductive because it adds fuel to the fire:

In some recess of David Irving's reptile brain, he knows that his indefensible imprisonment is helping his side. His side consists of all the enemies of open societies.

I agree with him on that point. But then he starts criticizing US "hate crime" laws, and that is where my agreement stops and my hatred for George Will kicks back in.

Hate crime laws could potentially take two forms. First, the government can make a certain type of racially-motivated act a crime. For example, we could make it illegal to display a symbol that one knows will arouse anger on the basis on race or religion. This would include cross burning. Unfortunately, the Supreme Court declared this type of law unconstitutional in RAV v. St. Paul. Second, the government can make the same act a crime without regard to its motive, then increase the offender's sentence based on the racial animus behind the act (call this an "aggravating" factor). This is still constitutional and many states have such laws. Will writes:

Hate crimes are, in effect, thought crimes. Hate-crime laws mandate enhanced punishments for crimes committed as a result of, or at least when accompanied by, particular states of mind of which the government particularly disapproves. Governments that feel free to stigmatize, indeed criminalize, certain political thoughts and attitudes will move on to regulating what expresses such thoughts and attitudes -- speech.

Mr. Will also criticizes campus speech codes:

On campuses, speech codes have abridged the right of free expression to protect the right -- for such it has become -- of certain preferred groups to not be offended.

First of all, let's call a spade a spade. Speech codes primarily protect Black students ("certain preferred group") from being victimized and threatened ("offended") by overtly racist and hateful statements ("expressions") from fellow students.

Mr. Will also criticizes the NCAA:

The NCAA is truncating the right of some schools to express their identity using mascots deemed "insensitive" to the feelings of this or that grievance group.

In the recess of his reptile brain, George Will knows that his indefensible defense of the right of universities to express their identities through patently racist mascots is helping the other side. The other side consists of all people who want to put an end to racism on college campuses.

It wasn't enough that you stole my argument, was it Mr. Will? You had to take my argument and turn it into a defense of hate crimes, a defense of campus hate speech, and a defense of racist mascots. Damn you, George Will.

WONDER WHY WHITNEY SNORTS HER COKE?

2006-02-24T15:24:00.000-08:00

"Under the United States Sentencing Guidelines, a defendant who deals five grams of crack cocaine faces the same sentence as a defendant who deals five hundred grams of powder cocaine." [emphasis added] Thus begins the Fourth Circuit's decision handed down today in the case of United States v. Eura.

In the 1980s, Congress adopted, and the Federal Sentencing Commission approved, a 100:1 crack/powder ratio for determining mandatory cocaine sentences under the Sentencing Guidelines. To be clear: You are convicted of selling one gram of crack cocaine. To determine your sentence, the court look at the Guidelines to see what sentence you would get for selling one gram of powder cocaine, then multiply that sentence by 100.

In United States v. Booker, the Supreme Court declared the mandatory nature of the Guidelines unconstitutional, limiting them to a mere "advisory" role. The decision established a two-step procedure for determining the length of a sentence. First, the district court calculates the sentencing range under the Guidelines, i.e. fifteen to twenty months. Then, the district court considers that range along with additional factors listed in another federal statute, 18 USC 3553(a), and imposes an appropriate sentence. If the district court imposes a sentence outside the range, then it must explain the mitigating or aggravating circumstances that led to its decision.

Section 3553 explicitly states that, in addition to the sentencing range, the district court should consider the Sentencing Commission's policy statements and official commentary to determine an appropriate sentence. On three separate occasions, the Sentencing Commission recommended that Congress reduce the 100:1 ratio; once recommending equal sentences for crack and powder cocaine offenses; once recommending a 5:1 ratio; and most recently, a 20:1 ratio. Congress, apparently satisfied with the 100:1 ratio, failed to act on any of the Sentencing Commission's recommendations.

In Eura, the defendant was convicted of possessing with intent to distribute crack cocaine, i.e. dealing. The district court calculated the sentencing range under the Guidelines, but imposed a reduced sentence based on the 20:1 ratio, in accordance with the Sentencing Commission's most recent word on the subject.

The Fourth Circuit reversed the district court, rejecting the 20:1 ratio. According the the Fourth Circuit, the district court did not appropriately consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," under Section 3553. If district courts were free to select their own ratios, then similarly situated defendants might get disparate sentences. This result would be inconsistent with Section 3553, so the district courts must all continue to use the 100:1 ratio.

The Fourth Circuit's argument is holy like swiss cheese:

1) You wanna talk about "unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct"? Compare a crack dealer convicted of dealing one gram of crack with a powder cocaine dealer convicted of dealing one gram of powder cocaine. These defendants have similar records (of selling cocaine) and have been found guilty of similar conduct (selling one gram of cocaine), yet their sentences are disparate (by a factor of 100). The law treats the crack dealer as if he had sold 100 grams of powder cocaine; the same law treats the powder cocaine dealer as if he sold one gram of powder cocaine, which in fact, he did. "[U]nwarranted sentence disparities."

2) Booker rejected, at least implicitly, the notion that the goal of individual fairness is superseded by the goal of sentencing uniformity. Of course, both are legitimate goals. District courts should have discretion to impose individualized sentences based on the particular circumstances of each defendant's case. But the district court's discretion must be limited to ensure that similarly situated defendants in different district courts receive similar sentences. The Sentencing Guidelines represented the decision that sentencing uniformity comes first; allowing district courts discretion to impose individualized sentences is secondary. Booker reverses this trend, holding that mandated sentences are unconstitutional because they do not take into account each defendant's particular circumstances.

3) Section 3553's warning to avoid sentencing disparity cannot overrule Booker's command that mandated sentences are unconstitutional. If the prohibition on sentencing disparities trumps the judge's discretion to impose what s/he considers a fair sentence based on all the circumstances, then we have simply replaced the "mandatory" Guidelines with "advisory mandatory" Guidelines.

The point is, Whitney would be a fool to smoke crack when she can afford to snort powder.

EMAIL GOVERNOR ROUNDS

2006-02-24T11:10:00.000-08:00

As some of you may already know, the South Dakota legislature has passed a bill that would outlaw almost all abortions in the state. The only exception is for cases in which an abortion is necessary to save the pregnant woman's life. There are no exceptions for cases of rape, incest, or to protect the pregnant woman's health.

A teenage girl who becomes pregnant after being raped by her father cannot have an abortion even if the child will be born with severe abnormalities, and continuing the pregnancy threatens the girl's health and her future ability to bear children.

It goes without saying that the statute is unconstitutional under current Supreme Court doctrine. This bill is a plain invitation for a court battle in which South Dakota will ask the Court to overturn Roe v. Wade. I ask all of you to send South Dakota Governor Mike Rounds an email asking him not to sign the bill into law. I know we are not South Dakota citizens, and therefore are not Governor Rounds' constituents. Just send him an email anyways. It can't hurt. Copy-paste your emails into the comments section for extra credit.

hallelujah.

2006-02-23T17:26:00.000-08:00

back in business. when i busted thru the door and saw that little green cable-modem light on, a sense of nirvana rushed over me like a flood of so much cyber-water. seriously though, it's good to have the internet at home, i can say that much.

i couldn't do a personal post here without giving a big shoutout to my man, jared, who just won a delegate seat on the student bar association. jared is a stand-up guy and he ran a classy campaign, so it comes as no surprise that the good folks at gulc elected him as one of their reps. and jared, i'll take my kickback shaken, not stirred.

on another personal note, i'm going to see charlie murphy, of chappelle's show fame, do stand-up tonight. i will certainly blog a review of the show tomorrow. until then, i'm rick james b*tch!

PROPOSALS TO DEAL WITH THE PORT DEAL

2006-02-23T13:16:00.000-08:00

It seems inevitable that Congress will pass legislation to block the UAE port deal. The only question, then, is what will that legislation look like. While I still don't believe any legislation is necessary or appropriate, I do have some thoughts on how it should be structured.

As a first principle, the broader the legislation the better. Congress must find a way to exclude certain organizations from taking operational control of US ports in a way that does not directly name the UAE or Arabs as a group. A couple of ideas I've heard tossed around:

1) Ports may not be run by companies from non-democratic countries, as determined by the State Department.

2) Ports may not be run by companies from countries who no not have specific treaty obligations to defend us in the case of an attack (basically limiting it to NATO allies).

There are a couple of other issues that I think could be discussed:

a) Limiting port operations to private companies. I don't really see the value in this but maybe someone else does.

b) Limiting port operations to US companies. There probably is value in this, but is it too expensive and difficult, given that many ports are already operated by foreign countries?

I'd love to hear anyone else's ideas. How can Congress draft legislation that will block this particular deal without looking prejudiced against Arab companies and allies? In a more general sense, who ought to be operating US ports?

3

I'M WITH GEORGE AND BILL

2006-02-23T12:27:00.000-08:00

That's George W. Bush and Bill O'Reilly, in case you were wondering. And yes, I agree with them about going ahead with the UAE port deal. Scott McClellan must have said it a hundred times yesterday during the White House press briefing: the President is operating on the simple principle that an Arab company should be held to the same standard as a British company. This seems like a good principle to me. Maybe we's prefer a policy that only American companies can operate our ports, but I haven't heard that suggested by anyone. And as I understand it, that would require many changes where US ports are currently operated by foreign companies.

Lou Dobbs suggested several reasons why the UAE company should be treated differently than the British company:

1) It's not fair to compare the UAE to Britain, our greatest ally in the war on terror. Not very convincing. As stated above, the UAE appears to be a complete ally; that Britain is a better ally is not only questionable, it is a distinction without a difference.

2) The British company is private and the UAE company is government owned. Dobbs did not elaborate on this point, so I'm not really sure what he's getting at. Do we have some inherent distrust of government companies? I didn't think so. I think he's just getting back to the same point that we distrust Arabs, not Brits.

3) Several of the 9/11 hijackers were from the UAE, $$$ for terrorism has been funneled through the UAE, and the UAE does not recognize Israel. I would appreciate any research on that last point. Lindsey Graham said last weekend that the UAE promotes the destruction of Israel, which it does not. What is the UAE's take on Israel? Not that I really see how it matters. Dobbs' other points are easily rejected. There are plenty of terrorists in Great Britain, even if none of them were 9/11 hijackers. This is no special reason for concern. Money for terrorism flows all over the place. I have seen no evidence that the UAE has been anything but diligent in its efforts to prevent that flow.

I agree the situation would be different if we were dealing with a company owned by the Iranian or Syrian governments, but that it not the case. By all accounts, the UAE has been a total ally. The knee-jerk reaction of Congressmen to freak out over the deal is racist, xenophobic, ignorant, and misguided. Which leads me to my next important question (and conspiracy theory)...

Why is the Bush administration fighting back so hard on this? Bush threatened to veto any attempt by Congress to block the deal. Scott McClellan yesterday reiterated that the President would even block an attempt by Congress to slow the deal down, let alone prevent it entirely. My first theory was that the President was trying to toss a softball to Republicans in Congress. He knew they and their constituents would oppose the deal, but probably thought Democrats would have to support it because they wouldn't want to look bigoted. Wrong on that one. I can't figure any other reason for the President to fight so hard on this, other than that he is actually sticking to the principle I cited above. So, I'll say it again (and this is the last time, I promise): I agree with George and Bill on this one.

CORRECTION

2006-02-23T09:29:00.000-08:00

So, I've caught a factual error I made a few posts ago, when I was responding to Fleming Rose's defense of the Muhammed cartoons. I said that, as far as I knew, the cartoons were not accompanied by any explanation of the self-censorship they were purportedly responding to. In a sense, that was true, because I said "as far as I knew." So, now I know a little farther and should update my previous statement.

I love Wikipedia. I go to look up the word blasphemy, and what do I find but a link to an incredibly comprehensive chronicle of the entire cartoon debacle. It turns out that Fleming Rose did include the following explanation alongside the cartoons:

The modern, secular society is rejected by some Muslims. [emphasis added They demand a special position, insisting on special consideration of their own religious feelings. It is incompatible with contemporary democracy and freedom of speech, where you must be ready to put up with insults, mockery and ridicule. It is certainly not always attractive and nice to look at, and it does not mean that religious feelings should be made fun of at any price, but that is of minor importance in the present context. [...] we are on our way to a slippery slope where no-one can tell how the self-censorship will end. That is why Morgenavisen Jyllands-Posten has invited members of the Danish editorial cartoonists union to draw Muhammad as they see him.

Does this change my view of the cartoons any? Yes, definitely. Rose was not just being incendiary, he was trying to make a legitimate point, albeit in an incredibly insensitive way. Look at the first sentence. That is Rose's story, his news. He intends not just to tell that story, but also to show it by exercising his "modern, secular" free speech right by printing cartoons he knows will be "rejected by some Muslims." Point taken.

But could not the same criticism be made of other religions? What about Christianity? Don't "some" Christians reject modern, secular society? If you think they don't, then google 'intelligent design,' or 'faith-based initiative,' or 'creche in front of city hall.' You might point out that these Christians do not riot to get their way. True, but that may be more a function of their wealth than it is a function of their religious moderation.

withdrawal.

2006-02-23T08:19:00.000-08:00

my cable internet is down at home. for shame. it's been a little finicky the last couple days, but as of yesterday afternoon it's officially out of commission. last night i just felt a little depressed; by now, i'm starting to feel pretty shaky; if it's not on by tomorrow morning i'll be in full epilectic convulsions.

and how fitting. colby was just talking about how reliant we all are on the internet. no sooner do i write the comment that "one day, the internet will replace oxygen as the sustenance of life," than my internet goes down. so, i guess that means i'm dead, in some metaphorical sense. and it's not a quick death, you know like getting shot by a high ranking government official. it's a long, slow, painful death; more like being strangled by your best friend. you just sit there, feeling the life get sucked out of you, wondering, why? why me?

on a happier note, i've decided that all personal posts will be in lower case letters. posts about other more serious stuff will be fully punctuated. that way, you can skip the personal stuff easier; or you can skip the serious stuff easier, depending on your preference. i mean, obviously my advice is to read it all, but who am i? i don't even have the internet at home.

happy 27th c-note!

2006-02-22T07:38:00.000-08:00

a day late and a dollar short.

it's been real; it's been fun; in fact, i can even say it's been real fun.

in your honor, the capital letters have been removed from this post.

keep up the good work over at blue basilica. a birthday haiku for you, no rhyme intended:

good godfather bit,

better friend without a doubt,

best man by all means.

DUE DEFERENCE

2006-02-21T11:06:00.000-08:00

I've got a bit more on the government's argument in Gonzales v. Carhart, the Partial-Birth Abortion Ban case. First, a quick refresher on the issue: The Supreme Court has already said that an abortion regulation must have a health exception if the prohibited procedure is necessary in some instances to preserve the health of the woman. In the Partial-Birth Ban, Congress made explicit factual findings that the prohibited intact D&E procedure is never necessary to preserve the health of the woman. Thus, the Ban contains no health exception. Several lower courts have declared the Ban unconstitutional because it lacks a health exception, in spite of Congress' finding.

The government argues in its cert petition that the courts owe great deference to Congress' factual determination that intact D&Es are never necessary to preserve the health of the pregnant woman. The government relies on Turner II for the proposition that the Court's only responsibility is to determine whether Congress drew "reasonable inferences based on substantial evidence."

In Turner II, provisions of the federal Cable Television Consumer Protection and Competition Act of 1992 required cable television operators to carry a certain number of local broadcast television stations, based on a cable operator's channel capacity. The cable operators argued that these provisions required them to carry unwanted speech in violation of the First Amendment (note: The First Amendment primarily prohibits the government from shutting you up, but it also prohibits the government from making you say things you don't want to). The Supreme Court upheld the "must-carry" provisions, deferring to Congress' factual finding that the characteristics and increased power of cable operators threatened the continuing viability of local broadcast stations, and that the provisions were necessary to help sustain local broadcast tv. The Court said:

[The] issue before us is whether, given conflicting views of the probable development of the television industry, Congress had substantial evidence for making the judgment that it did. . . . [We] cannot displace Congress' judgment respecting content-neutral regulations with our own, so long as its policy is grounded on reasonable factual findings supported by evidence that is substantial for a legislative determination.

This is a very deferential standard for reviewing Congressional findings. It seems to me that there are two significant factual findings at issue in the current case:

1) intact D&E abortions are never necessary to preserve the woman's health.
2) consensus exists among the medical community that intact D&E abortions are never necessary to preserve the woman's health.

With respect to the second finding, I don't think that any amount of deference will bless Congress' judgment; such a consensus just plainly does not exist among the medical community. The trickier question is how to deal with deference and the first factual finding because Turner II also involved conflicting evidence before Congress.

In Turner II, the issue was whether cable television threatened the ongoing profitability of local broadcast stations; Congress found that it did. Deference may have been appropriate in that case because it wouldn't make sense to wait to save local broadcast stations until they had already gone out of business. In the face of conflicting evidence, Congress was justified in finding that local broadcast stations were at risk and acting immediately to help them. But in the current case, where Congress faces conflicting evidence as to whether a particular medical procedure is ever necessary to preserve a woman's health, the appropriate deference is to the woman's health. Congress is not justified in determining that the procedure is never necessary; a doctor who believes the procedure necessary ought be allowed to perform it, while a doctor who finds the procedure unnecessary need not. It doesn't make sense for Congress, with its limited medical training (sorry, Senator Frist) to be substituting its judgment for that of many doctors who believe the procedure is sometimes necessary to preserve the woman's health.

SUPREME COURT TO RECONSIDER PARTIAL-BIRTH ABORTION BAN

2006-02-21T07:17:00.000-08:00

We all knew this was coming, right? The Partial-Birth Abortion Ban of 2003 is a federal statute, passed by both houses of Congress and signed by the President. The statute has not gone into effect because it has been struck down by three Courts of Appeals. A similar Nebraska law was struck down by the Supreme Court in 2000; though that decision was 5-4 with O'Connor in the majority. All else being equal, Sam Alito's vote is now the "swing."

The statute subjects a doctor to civil and criminal penalities for knowingly performing certain abortion procedures. There is dispute about what procedures are prohibited. Abortion providers argue that the statute might be interpreted to prohibit intact and non-intact "dilation and evacuation" procedures, as well as induction; the government insists that the statute only prohibits intact D&Es.

Doctors are exempt from liability when an otherwise prohibited procedure is necessary to save the woman's life, but there is no similar exception for cases in which the procedure is necessary to preserve the woman's health. The Supreme Court has said that an abortion regulation must include such a "health exception" if the procedure may sometimes be necessary to preserve the woman's health. Congress decided that a health exception was not necessary in this statute because the prohibited procedure is never necessary to preserve the woman's health. Make sense so far? Good.

How, you might ask, did Congress determine that intact dilation and evacuation is never necessary to preserve the woman's health? They did what they always do; they called people, in this case doctors, to testify before them. So, you might say, I guess all the doctors agreed that intact D&E abortions are never necessary to preserve the woman's health. No. They didn't. In fact, there was wide disagreement about whether the procedure was ever necessary to preserve a woman's health. And the conclusion Congress drew from this array of testimony: consensus exists among the medical community that the procedure is never needed to preserve the woman's health. From cnn.com:

The lower court "erred by refusing to accord deference to Congress's findings, including its ultimate finding that partial birth abortion is never medically indicated to preserve the health of the mother,'' U.S. Solicitor General Paul Clement argued.

Come on. I'm all in favor of deference to Congress' factual findings, but there must be a limit. If Congress woke up in the morning, looked up, and told you the sky was green, would you defer to its judgment?

Three District Courts heard the case, and three Circuit Courts heard the appeals, and all six courts agreed: Congress must be crazy. How can you say consensus exists among the medical community that a procedure is never necessary, when plenty of doctors just testified that the procedure is sometimes necessary? I don't know how, but I'll bet the Supreme Court does.

INTOLERANT OF INTOLERANCE

2006-02-19T15:40:00.000-08:00

I've been following the Muhammed cartoon story, though not in great detail. Fleming Rose, the publisher of that now infamous Danish newspaper, has an interesting explanation of his decision to commission and publish the cartoons in today's Washington Post. A couple of things in his letter caught my attention.

Apparently, the decision to do the cartoon bit was prompted by several events in Europe involving what Rose describes as "self-censorship." A Danish comedian exclaimed that he would be afraid to be photographed pissing on a Koran; a museum in London removed a painting of shredded religious texts, including the Koran; a Danish children's writer couldn't find an illustrator to draw a picture of Muhammed for her new book; a group of Muslim religious leaders asked the Danish Prime Minister to encourage press coverage more favorable to Islam (though there is no indication the PM heeded their request). These isolated events led Rose to the conclusion that action must be taken. He writes:

This was a legitimate news story to cover, and Jyllands-Posten decided to do it by adopting the well-known journalistic principle: Show, don't tell.

I'm no journalist, but it's unclear to me that this principle supports the course of action Rose took. The cartoons neither show nor tell anything about the self-censorship he laments. And, as far as I can tell, the cartoons were not accompanied by any explanation of the publisher's intent. An article, or a series of articles, could have directly addressed self-censorship issues and the events Rose now chronicles. The journalistic principle of "show, don't tell," would probably require printing a photo of the painting that was removed from the London museum, and the Danish writer's book with the Muhammed illustration she finally commissioned. But I do not think the principle has anything to do with printing the cartoons. The cartoons convey no news; they have no story. They are merely satire.

Rose acknowledges that many people were offended by the cartoons, but notes also:

I am offended by things in the paper every day: transcripts of speeches by Osama bin Laden, photos from Abu Ghraib, people insisting that Israel should be erased from the face of the Earth, people saying the Holocaust never happened. But that does not mean that I would refrain from printing them as long as they fell within the limits of the law and of the newspaper's ethical code. That other editors would make different choices is the essence of pluralism.

I agree. Many things in the news are offensive and potentially provocative. The problem with Rose' analysis is that publishers in some European countries cannot say the Holocaust never happened because it's against the law. Those countries do not, in fact, have the freedom of speech that Rose purports to defend. This sends a clear message to Muslims in Europe: We are willing to restrict speech that offends some people, just not speech that offends you. Maybe this contradiction will lead to the repeal of such laws. But even this, it seems, would be little consolation to European Muslims now; saying to them, we are willing to be offended ourselves in order to protect our right to offend you.

RUMSFELD TO START OWN BLOG

2006-02-17T13:07:00.000-08:00

You heard it first: Donald Rumsfeld blames our renegade image among Muslims in the Middle East on the lack of a DOD blog. What can the US do to improve its standing in the rest of the world, especially among those who seem to hate us most? Change our foreign policy, you might ask? Nope. Start a blog? Yes, that is the answer. What we need in the Middle East is an onslaught of snarky blogposts from spin doctors in the Pentagon. From cnn.com:

The Pentagon's propaganda machine still operates mostly eight hours a day, five or six days a week while the challenges it faces occur 24 hours a day, seven days a week. Rumsfeld called that a "dangerous deficiency."

So the problem is not that we're out of touch with the average Muslim man or woman in the MidEast. The problem is just that we're lazy, and keep short hours.

He lamented that vast media attention about U.S. abuses at Abu Ghraib prison in Iraq outweighed that given to the discovery of "Saddam Hussein's mass graves."

And, as Rumsfeld apparently recognizes, there are two ways to solve that problem: 1) censor, or at least censure, the news agencies reporting prison abuse, and/or 2) post photos of Hussein's mass graves on the Pentagon's new blog.

Rumsfeld also cited the methodical U.S. response to a Newsweek magazine report that interrogators at the U.S. military prison at Guantanamo Bay, Cuba, had placed the Koran, Islam's holy book, on toilets and flushed one down. After riots around the world killed 16 people, Newsweek retracted the story. "It was posted on Web sites, sent in e-mails, repeated on satellite television, radio stations for days, before the facts could be discovered," Rumsfeld said.

What we need here are prior government restraints. This way, all news will be reviewed by the Bush administration for "fact-checking" before it gets published. This will ensure that all our news is factually accurate, although grossly incomplete and misleading (and probably factually inaccurate). Nevermind that if accurate reports of rampant detainee abuse had not already surfaced, the Koran-in-the-toilet story might not have taken off so quickly.

Coming to a blogosphere near you: BlogWar by Rumsfeld.

THE BALTIMORE SUN HAS (PART OF) THE STORY

2006-02-17T12:34:00.000-08:00

A bit more on the Schaefer debacle. The Baltimore Sun reports the possible legal ramifications of Schaefer's overtly sexual misconduct towards a young Ehrlich aide. In relevant part:

State and federal laws prohibit discrimination on the basis of age, ancestry, color, creed, marital status, race and gender, among other qualifiers. Under state law, sexual harassment is a type of discrimination and is defined in the state workplace policy as "unwelcome sexual advances, requests for sexual favors and other verbal, nonverbal or physical conduct of a sexual nature."
For a sexual harassment claim to hold up in court, employees must prove that the conduct involved produced a "hostile, offensive or intimidating work environment" that was "severe and pervasive," said Harriet Cooperman, a partner with the Baltimore law firm Saul Ewing LLP and an expert in labor law.
Cooperman said the exchange between Schaefer and Krum would not qualify on either count. "In and of itself, it's not actionable," she said. "In and of itself, it doesn't amount to sexual harassment."

What the Sun article fails to note (and gumshoe-Hadi uncovers) is that, in addition to being a labor law expert and Saul Ewing partner, Harriet Cooperman was also reappointed by Ehrlich in 2005 to the State Higher Education Labor Relations Board, where she currently serves as Vice Chair. Now, I'm not implying any misconduct or misrepresentation on Ms. Cooperman's part; I'll note that she was originally appointed to that Board by former Governor Glendening, and I have no idea what her politics are. I do believe, however, that the fact of her recent reappointment by Ehrlich to an important state office should have been noted in the Sun article. Putting blind faith in the legal opinion of an Ehrlich appointee about Schaefer's misconduct would be about as stupid as. . . . well, as stupid as putting blind faith in the legal opinion of a Bush appointee about the NSA spying program; which, as it turns out, is exactly what the Senate "Intelligence" Committee plans to do.

The article might also have noted that hostile work environment sexual harassment claims are largely fact specific; so predicting the outcome in any particular case is extremely difficult. In addition, a later-in-time Washington Post story notes that while Schaefer's conduct may have fallen short of the legal standard for harassment, "the threshold to violate reasonable employer rules is much lower," said Amy Oppenheimer, a California-based lawyer who helps train companies nationally about appropriate workplace conduct. The state government policy defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal or physical conduct of a sexual nature." Prohibited conduct includes "jokes" and "suggestive comments." In light of these facts, Cooperman's blanket statement, without exception, is surprising to me. But hey, as the Sun might properly note, I'm not the expert.

WHEN IS AN INSULT A COMPLIMENT?

2006-02-17T12:08:00.000-08:00

When it's coming from William Donald Schaefer, that's when. John Wagner of the Washington Post has the story. Responding to criticism from reporters about the sexual innuendo he directed at a young female aide to Governor Bob Ehrlich, Schaefer said, "A little girl walks out, and I make a joke out of it. . . . The one who is offended is me. . . . I can't believe you are making a deal out of that." Wagner reports:

"I think she overreacted, frankly," [Louise] Hayman[, a longtime aide to Schaefer,] said. "I guess she was surprised by it. There's a generational issue here."

Yes, Louise, there is a generational issue here. During the heyday of Schaefer's generation, this type of harassment was largely accepted. Now, it isn't.

Hayman said that Schaefer has a well-established record of promoting women in the workplace and that those who have worked for him do not feel in any way offended by his habit of referring to accomplished women as "little girls."

Hmm, interesting. I wonder whether "those who have worked with him" feel "in any way offended" by his habit of referring to accomplished men as "little boys." Or doesn't it cut both ways? The people working with Schaefer may not feel offended by Schaefer referring to our professional wives and adult daughters as "little girls," but the rest of us do.

"It sounds like he's demeaning you, but what he's really saying is he respects you," Hayman said. "I know that sounds odd."

To tell you the honest-to-God truth, Louise, it sounds more than just "odd." It sounds impossible, completely nonsensical. But, there you have it: An insult is really a compliment when it's coming from William Donald Schaefer, your Maryland Comptroller.