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The memes keep on a coming

Thursday, May 28, 2009

Yet another right wing meme has sprung up about Sonia Sotomayor. Her alleged high reversal rate in the Supreme Court proves that she is far too radical to be on that court. Nate Silver demolishes math here.

But I suggest that it’s wrong to buy into the basic premise. First, from a purely partisan point of view, there’s not much reason for any Democrat to want a judge with whom the present Supreme Court agrees. One of the reasons it was so important to get a new president was because it was a necessary condition precedent to getting a new court. The Supreme Court is the only court in the country from which there is no appeal, so the fact is that the judges on that court can vote any way they please. Sotomayor, from what I’ve read in the last few days, is a judge who has adhered pretty strictly to precedent. As an lower rung judge it is her obligation to do so. That is not quite the case for a Supreme Court judge. We must all fervently pray that she disagrees with the current majority more than she agrees.

The fact that three of her five cases that the Supreme Court reviewed were reversed is therefore not troubling. What we should be more concerned about is the fact that two of her decisions were upheld.

Okay, the above is a bit facetious. I don’t know anything about the cases in question, nor do I know who constituted the majorities in any of those cases. It may be that she was reversed by the four “liberals” plus Kennedy, which might in fact be troubling. Of course, the folks attacking her on this score have not been interested in doing that analysis either. What I can say in all seriousness is that we should definitely not buy into the argument that a high reversal rate should be considered somehow disqualifying. Given the present extreme right-wing make-it-up-as-you-go-along Supreme Court (see, e.g., Bush v. Gore) a high reversal rate should be expected for any fair minded judge who adheres to settled precedent.

On a somewhat different note, why is it that the media (example here, but I’ve seen others I’m too tired to locate) gives valuable space to Wendy Long, of the Judicial Confirmation Network, a person who can say the following, apparently with a straight face:

Wendy E. Long, counsel to the Judicial Confirmation Network, said Sotomayor “has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court.”

The “current liberal activist Supreme Court” – the Bush v Gore court- the corporations can do no wrong court, is without a doubt the most reactionary court we have had in about a hundred years. No serious person can doubt this. Yet these remarks are printed uncritically. It’s a bit like passing along a quote to the effect that the world is flat without pausing to remark that the statement is unquestionably false.


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A trip down memory lane

Wednesday, May 27, 2009

I was perusing a front page article in the Globe this morning (co-written by a brilliant young reporter who coincidentally shares my last name), and I noted that Republicans are taking offense at the idea that someone’s life story should be considered in determining his or her fitness for the bench:

Obama, however, was quickly challenged by critics who contended she was picked more for her personal story – and her gender and ethnicity – than her legal credentials.

Now, hypocrisy is a bi-partisan disease in Washington, and memories are notoriously short, but let us hearken back to the confirmation of a man who was one of the objectively least qualified nominees to the Supreme Court bench ever. In what was surely one of the most cynical nominations ever, the first Bush nominated a right wing opportunist to replace Thurgood Marshall, a true civil rights hero.

As always, the hearings revolved around abortion. This was at about the time when the Democrats finally began to realize that abortion could be a winning issue for them; though they never really had the guts or brains to mount a full throated attack on the American Taliban. Thomas, of course, was clearly anti-abortion, and just as clearly wanted to avoid saying so. His strategy was to talk about his rags to riches rise (so far as I know, he never got around to explaining why he decided to kick the ladder to the ground after he made it to the top). For instance, when confronted with a quote in which he clearly endorsed an anti-abortion screed, he preferred to talk about his background:

In responding to Senator Biden’s question, Judge Thomas also made a point to mention his grandfather and mother several times. Part of the White House strategy in the hearings is for Judge Thomas to talk as much as possible about his rise from poverty.

Those of us who lived through those hearings remember that strategy well. Thomas cast himself as the victim of racism (by the way, he apparently feels he was the last such victim) whenever anyone questioned his views, and, whenever possible, he would talk about his personal story. Given the time and his color he effectively cowed the Senate Democrats, who were deathly afraid of being pictured as racists, much to the delight of the Republican racists that nominated Thomas and expected exactly that reaction from the Democrats. Thomas, of course, dwelt on his story prior to the time that affirmative action got him into Yale Law School, and prior to the time that he signed on with Ronald Reagan to try to destroy affirmative action for those still mired in the poverty he escaped. He also stopped the story prior to the time he sexually harassed Anita Hill, and when that came out his nomination was temporarily derailed, but she was easily smeared and the tawdry excuse for a judge got his confirmation, and has gone on to be exactly the right wing judge we all expected.

Thankfully, there’s more to Sotomayor than a good story, and she stacks up well beside Thomas.

Thomas was judged minimally qualified by the American Bar Association. Expect that Sotomayor will earn their highest accolade. She is being unsuccessfully criticized for saying that she can still empathize with the less fortunate; he has never been accused of that particular “failing”. Her life story is icing on the cake. His life story was all the cake there was.


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Prop 8 upheld

Tuesday, May 26, 2009

The California Supreme Court, as expected, upheld the validity of Proposition 8. A quick reading: before we held that same sex couples were constitutionally entitled to the legal use of the term “marriage” to describe the legal relationship to which they, along with opposite sex couples were entitled to enter. I.e., civil unions with the same rights and responsibilities of marriage just wouldn’t do. Now we hold that it’s not really that important what you call it. The majority can deprive the minority of the right to call themselves “married”, so long, as they haven’t deprived them of any other substantive rights. In other words, so long as same sex couples can enter into domestic partnerships with all the legal incidents of marriage, everything is hunky dory. It has to walk like a duck and talk like a duck, but you don’t have to call it a duck.

I wonder if they would have felt the same way if, in some topsy turvy world, a majority of the states voters had decided that only same sex couples could legally be called “married”. That’s a question, I assume, that must forever remain a conjecture.

On his show tonight Olbermann suggested the case might go to the U.S. Supreme Court. If I’m not mistaken, the case was litigated entirely with reference to the California Constitution, and it’s pretty clear that it would be a major mistake to try to establish the right to same sex marriage in the federal courts. At the moment, the best you could hope for is a five to four loss on the rather narrow issue facing the California court. Worst case: the court grabs the opportunity to declare that same sex couples don’t have any constitutionally protected interests at all. You easily have four votes for that position on the present court. Best to leave this issue percolating in the states, particularly because it looks like the state legislatures in many states are giving the concept a stamp of legitimacy that no court can give. It’s a lot harder for the right to attack a legislative enactment as illegitimate (though, of course, they will) than a judicial decision.


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Obama’s pick

Tuesday, May 26, 2009

Obama has picked Sonia Sotomayor for the Supreme Court. I don’t know much about her, so I have no opinion about her legal philosophy, although she certainly appears to have the paper credentials. Of course, so did Alito and Roberts, though I’m sure we can be confident that she won’t be fellow travelers with them on the road to the 19th century.

I’m more interested in what this appointment has to say about Obama. Of all the names being bandied about, it was Sotomayor that drew the most opposition, for reasons it’s hard to fathom, since she is apparently no more liberal than the others mentioned as possibilities. Maybe it was just reflexive racism, but as soon as her name surfaced, the whispering campaign began in earnest, and very serious people counseled Obama not to nominate her, given the blow that would be to the spirit of bi-partisanship abroad in the land. It’s important, recall, for a moderate to liberal president to assuage the extreme right, though an extreme right president was never expected to moderate his choices (and never had to).

The fact that Obama decided to go with Sotomayor speaks well for him. He took the Republicans up on their implicit challenge, and once again, if my guess proves true, he will have shown himself to be an astute politician, able to see as many moves ahead as a chess grandmaster. He just continues to run rings around them, or to paraphrase Hamlet, he “delve[s] one yard below their mines, and blow[s] them at the moon.” The more they oppose her, the more they are likely to lose, looking more and more like what they are: the party of white racists. In the end, no matter what they do, she will be confirmed. They may raise some money off the fight, and they may temporarily energize their dwindling base, but they will lose where it counts. Obama wins in another way; this sweeps the absurd Guantanamo controversy off the front page and out of the discourse. Everyone knows the beltway crowd is too stupid to follow two issues at once.

I know some pundits are saying the Republicans will quickly back off, but I’m not sure they can afford to alienate their base by doing so, and I’m not sure they can stop themselves even if they know they should. It’s not like they’re particularly good at avoiding self destructive behavior. But either way, in the end, Obama wins and he’s shown them that he’s not going to be pushed around.

Now, if only Scalia would get elected Pope or something, we’d be on our way to a decent court.

UPDATE and ASIDE: I can’t let this subject go without mentioning the fact that John Yoo is opposed to Sontomayor because-get this-she is guilty of “results oriented” jurisprudence. For the non-lawyers who may not be sure of the meaning of the term, “results oriented” refers to legal analysis that begins with a desired result and then comes up with a rationale to achieve that result.

Generally speaking, those with whom we disagree engage in “result oriented” legal analysis, while those with whom we agree are original legal thinkers. That’s human nature.

In fact, every judge engages in at least a bit of results oriented behavior, but if one wanted to teach a course on the subject, Yoo’s torture memos would be the example par excellence of results oriented legal work.


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Karl Marx, Looney Tunes Edition

Monday, May 25, 2009

I’ve always believed that Karl Marx’s analysis of society was spot on. His expectations for the future, on the other hand, never cut the mustard. As to those societies that called themselves communist, none made any serious attempt to create the kind of state that he envisioned. They used his ideas to grab power, but I don’t think he can be blamed for that.

Anyway, here we have the Communist Manifesto, with surprisingly apt illustrations from one of America’s greatest art forms, one which is a more entertaining mass opiate than religion. The narrator could use a bit of enlivening however.

My son sent me the link to this, so the credit (I’ll accept any blame anyone wants to heap) goes to him.

Tomorrow I will presumably awake from my holiday somnolence and get back to politics.


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Pity the corporate media

Monday, May 25, 2009

The New York Times drips sympathy for Freemantle Media Enterprises, the company that owns the rights to “Britain’s Got Talent”, the show on which Susan Boyle appeared. Seems that Freemantle has been unable to leverage Ms. Boyle into a windfall profit:

The case reflects the inability of big media companies to maximize profit from supersize Internet audiences that seem to come from nowhere.

We are not told precisely why Freemantle is entitled to make gobs of money off of Ms. Boyle, in addition to that it routinely makes off the show. Nor, for that matter, does anyone in the article address the broader issue of precisely why anyone has a god given right to make money off of spontaneous internet phenomena. It is just taken as given that any corporation with any connection to such an event is deprived if it doesn’t realize a huge profit.

Nor does the Times spare a word for Ms. Boyle’s pecuniary interest. Whether or not she profits from her own talent is apparently a matter not worth considering.

Apparently, Freemantle has been successful at one thing. The newest performance is only available through Freemantle’s web channel, and cannot be embedded.


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Signs of Summer

Sunday, May 24, 2009

I have written before about our little pond, which sits nestled next to an ancient granite “patio”, which appears to have been constructed before people even used that term. The patio was built from the granite formerly quarried on site; the pond was constructed out of plastic. At the present time most of the pond is obscured by the beautiful red Japanese maple that we planted, as it turns out, far too close to both the pond and the sidewalk leading to our house. Despite all that, the tree is safe. It’s beauty makes it exempt from the woodman’s ax.

The pond itself often brings to mind a line I remember Jeff Goldblum delivering in the first Jurassic Park: “Life will find a way”. Somehow, despite our almost total (if benign) neglect of the pond (we do not feed the fish; we remove only a fraction of the load of leaves that fall in it each year; we never check the pH, etc. ) life goes on in the little pond. Each spring one or more frogs emerge from the depths, where they no doubt have spent the winter deep in the muck created by the aforementioned leaves. Fish appear too. The snails we introduced years ago to clean up the algae live on as well, still doing their job after so many years. Vegetation grows in profusion. In fact, the lily pad we have in there now will have to be removed soon. The last time we let one go this long we found, when we removed it, that it took up almost half the volume of the pond. As to the frogs, one of whom is pictured below basking among the lily pad leaves, there is an enduring mystery. Are these the same frogs that grew from the tadpoles we seeded more than 10 years ago? Or are they descendants, and if so, why have we never seen another tadpole? How do they survive? In all these years I’ve never seen a frog eat a single thing, though I’ve spent a reasonable amount of time watching them.

Whatever the answers to these less than profound questions (I’m sure Google would know), the annual rebirth of our little pond is always a welcome occurrence. Besides seeing the frog today (which, truth to tell, I first saw a few days ago) I also spotted a goldfish (first sighting this year) grazing around near the surface. Their survival is even more astounding. I know they are a long lived species, but their ability to live in what looks like pretty adverse conditions is remarkable


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Friday Night Music-Dixie Chicks

Friday, May 22, 2009

Memorial Day was originally Decoration Day, a day that the families of the fallen decorated the tombstones of the Civil War Dead. By and large it’s just another holiday now-the official beginning of summer.

I tried to think of a song that both honors the soldiers and doesn’t honor war, and this one popped to mind. The fact that it’s by the Dixie Chicks is a bonus, given their past.

Travelin’ Soldier:


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California Nightmare

Friday, May 22, 2009

California is on the verge of bankruptcy, but Washington is in no hurry to help:

California needs to solve its financial crisis by itself and should not expect an emergency bailout from the White House, an array of Obama administration officials said Thursday, making clear they had no appetite to step in and provide financial assistance or loan guarantees.

“Look, we’re going to examine what we can do. What we need to do, however, is to treat states fairly and that means uniformly,” David Axelrod, senior advisor to the president, said in an interview. “Whatever we do for one state, there will be other states who also will want to do that. And there’s a limit to what the government can do.”

Axelrod indicated that federal intervention on California’s behalf would set a dangerous precedent.

California has a huge debt. California has a debt that is a fraction of a fraction of the amount we have handed out to rogue banks with no strings attached. Both of those statements are true.

Washington could do California a favor by doing what it should have done to the banks. Provide help with lots of strings attached, or in the case of California, preconditions. If California were a corporation it would be unmanageable and absent a government bailout, already bankrupt. The budget process is held hostage to a minority in the legislature every year. The state is afflicted by scores of constitutional amendments put there by the initiative process that starve the state of revenues while often, at the same time, forcing the state to spend money on things it doesn’t need.

Washington should offer help. The preconditions should be that the voters amend their constitution to get rid of the right of taxpayer initiative, which they have abused, and that the legislature be returned to majority control in the budget process. If they want our money they should only get it if they have a sound business plan. I know that’s a departure from the way we handed money to the banks, but you have to start somewhere.

Update: Paul Krugman on the same subject.


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Alpert’s True Colors

Wednesday, May 20, 2009

My Left Nutmeg reports that Merrick Alpert is making the rounds of the right wing media outlets, promising to run a campaign built around trash talking Dodd.

I’m going to assume that Merrick is not completely crazy, so there must be some method to this particular type of madness. Here’s my take, for what it’s worth.

If he runs as a Democrat, particularly a Democrat to Dodd’s left, he gets no traction and no money. But if he runs as a Republican stalking horse, he gets plenty of free publicity via Fox and Friends, and possibly some money from right wingers looking to damage Dodd. So, in the short run, this gives him some visibility and maybe some money for a campaign that would otherwise get neither.

But publicity and money are usually only means to an end. Here’s where the questions begin anew. Precisely what is Alpert trying to accomplish? If he’s trying to actually win the nomination, he has already reduced his chances to zero.

In the end Dodd will have more money, and the attacks will only cause Democrats, especially activist Democrats, to circle the wagons around Dodd. After all, even those of us who would prefer to see Dodd retire gracefully feel that way more out of sorrow than anger. We like him, even if we are worried about his re-election chances. No challenger could make serious headway with Democrats with a slash and burn anti-Dodd campaign. In short, this strategy, whatever its short term benefits, guarantees that the Democratic candidate for the US Senate will not be Merrick Alpert. (Unfortunately, it also increases the chances that we will have two Republican Senators in 2011) It also guarantees that Alpert will have no future in the Democratic party. I think it’s safe to say that Alpert can even forget about that town council nomination we were trying to give him.

This is not 2006, Dodd is not Joe Lieberman, and Merrick Alpert is not Ned Lamont.


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