it's an opening

So, I have the Sotomayor confirmation hearing up in a small window. My first take of the day is that Chuck Grassley (R-IA) is a tool. Of course, I already knew that but it’s nice to have your beliefs reaffirmed. Even though Grassley is spouting on about his “review of her judicial record”, I seriously doubt that he’s cracked an opinion written by Sotomayor. Of course, maybe Jon Kyl (R-AZ) is showing himself to be even worse: it’s enlightening that Kyl, in particular, can’t even look directly at Sotomayor during his opening remarks as he twists ideas and throws about the “activist judge” epithet. Sen. Kyl has let us know that “80% of her decisions were either overturned or vacated by the Supreme Court.” Nice number, Kyl, but it’s not true. In Sotomayor’s 11 years on the appeals court she has written the majority opinion in 380 cases. Of those 380 cases the Supreme Court granted cert on five of those cases and overturned three of them. No matter how you slice that up mathematically, the Supreme Court only chose to review less than 3% of those case and overturned three – which is 7/10th of one percent of those in which she wrote the majority opinion; or, one in every 127 cases. If you were to take in consideration the full number of opinions issued by that court – other opinions in which she was in the majority but didn’t write the actual opinion – the number of overturned decisions is probably well less than one-half of one percent. Sen. Lindsey Graham (R-SC) is now flexing his stellar abilities from the dais. I love this line from Graham, “Does this mean I’m calling you racist? No, it doesn’t.” That’s pretty much like saying to someone, “I would never be one to call you an asshole but others might.” At least Graham has the strength of character to look at Sotomayor as he’s telling her that he wouldn’t throw water on her even if she were on fire. Oops, I had it turned down just now but it sounds like Sen. Leahy (D-VT) just laid some smack down on Graham for being petulant child – now Jeff Sessions (R-AL) has jumped in as big brother and Leahy gives him a whack on the nose. What’s most comedic about any of these hearings is that we have to listen to all the senators pontificating during their opening statements: four hours of blowhards from both sides of the aisle who like to hear themselves speak. I’ll finish off the morning session with Tom Coburn (R-OK) pointing out that the law should not be unpredictable, something that Sotomayor apparently said as some point in her life, according to him. He believes that it shouldn’t matter what judge you draw on a case but the law. He’s essentially saying that every case should be a unanimous decision at any level. By his standard, there’s no need for appeals courts or the Supreme Court because every bit of law is objective – and even if we maintain a Supreme Court, every decisions should be 9-0, preferably always deciding for the corporations and against citizens. Did I say that aloud? Oh, and by the way, if anyone wants to even consider international law as something worthwhile? Well, you can move back to Europe, Frenchie.

One more thing is this headline, unrelated to the hearing, from Yahoo!, “S.F. Zoo's gay penguin couple broken up by female penguin.” I think that’ll open the door to the “anti-gay, it’s a choice” crowd; and in San Francisco of all places.

planted seeds

Here’s a little insight into Justice Clarence Thomas. This may be the most I’ve ever heard uttered from him in any setting. I’ll leave my analysis to this: there is a difference between rights and the awe reserved for the dishwasher.

We had a pile of rain on Saturday (and I was working at the Library of Congress) so we didn’t get the square-foot garden* in order until yesterday. As the WonderTwins made a run to Baltimore to pick up children and mother I pulled out the tools and started getting the wood cut and ready for the frame. At one point I called X to see how she wanted the box configured – I knew it was to be 8’ x 4’, shush – and out of nowhere Corey showed up at the house with tools and tool belt in hand; sort of like a superhero. No real bother. I would have gotten there in the end but it’s much faster when the woodworker shows up on your doorstep. All the seeds have been planted and we’re hoping to take a weekly picture of the doings; if they’re interesting then maybe you’ll get a time lapse series of shots.

I flexed my manliness by sharpening all my kitchen knives and cleaning and restocking my spice and herb rack with a fresh batch of Penzey’s.

The NHL playoffs start this week – Wednesday for the Capitals – so the city is abuzz with anticipation. And, by “the cit”y, I mean the hockey weird-os.

It’s been awhile,

T

*As an aside, 600 lbs of top soil will give you about 6 inches deep over 32 square feet. I guess we could call that about 16 cu. yards of coverage. A train departs station A at 35mph at 1pm and a second train departs station B….

no money for something

The president signed the Lilly Ledbetter Fair Pay Act today – the first significant piece of legislation of this administration. The name may have slipped the mind but the Supreme Court decision last year was an abomination. If you don’t want to wander hither-and-yon to read the details, I’ll try to summarize the basics as best I can:

Mrs. Ledbetter worked at a Goodyear plant in Alabama for twenty years. Her pay for the position she held was about 40% less than her male counterparts but she didn’t realize it until near the end of her career. She filed an EEOC complaint for discrimination immediately after learning of the discrimination. She won her case with the award totaling $300,000 for punitive damages (the limit), and $60,000 for two years of back pay; the two years is also the maximum allowed under the law. Goodyear appealed and won which led to Ledbetter taking the case all the way to the Supreme Court where she lost the case. The majority ruled, or interpreted, that the statute of limitations for filing a pay discrimination complaint is limited to 180 days from the initial discrimination – or something like 18 years earlier. Ledbetter argued that every paycheck was effectively discrimination and so the clock reset every pay period; it’s sort of hard to file for discrimination if aren’t aware of it until years later. Ledbetter, at the time she finished working that job for 19 years was still making $6,000 less per year than the newest, and lowest tenured, employee doing her same job. All the other employees working the same position were also male. It was heartwarming to see that that the Goodyear’s Gadsden, Alabama factory, after the case, transferred a 60-year-old woman to a job that required her to carry Hummer tires. That’s a quality company.

The Congress attempted to pass a new law last session after the Supreme Court ruling but it was filibustered by Senate Republicans. Some of their arguments involved lawyers making money, huge payouts to discrimination filers, and endless cases. From what I’ve heard and read, the $300,000 and two-year back pay numbers are maximum limits so any cases, with the law as it was written, wouldn’t climb into the multi-millions. The new law passed last year merely adjusted the statute of limitations. And why wouldn’t it? Who knows how much co-workers make? Why would you ask if you didn’t know anything was wrong? Essentially, the Supreme Court ruling implied that as long as a corporation could snow someone for six months then they could continue that behavior until the end of time with no recourse on the employee’s side.

Even though Lilly Ledbetter didn’t benefit for the new Act, we’ve finally arrived at a solution that’s been accomplished by making the system work as it should have in the first place: Congress passing the bill and the president signing it into law. Well done.

Author’s note: all profanity-laced tirades directed at Chief Justice Roberts; Justices Alito, Thomas, Scalia, Kennedy; and John McCain, have been censored.

Have a nice day.

shoot 'em up

As if I wouldn’t have something to say about Heller v. District of Columbia.

Even though I parse the verbiage of the 2nd Amendment differently than Scalia and Co., I can live with the decision that clears the decks for dealing with the gun issue in America . What Scalia has given us, as X so rightly stated, is a stick in the mud.

Their interpretation of the amendment is based on how to equate the prefatory phrase (“a well-regulated militia) and the other grammar bit about “the people”. The majority opinion declares that “the people” are individuals, not a “common” people, and very clearly says that individuals have the right to have handguns in their home for self-defense purposes. What is also does, and a byproduct that surprises me, is state that laws prohibiting guns in schools and government buildings, as well as waiting periods, licensing requirements and the like, are all perfectly legal. Apparently in their parsing of the phrase they decided to either ignore the “shall not be infringed” bit or determined that it’s something they’d rather deal with down the road. Either way it will turn that Justice Breyer’s dissent will eventually tell the tale: the balancing of public good against the inconvenience or burden placeed upon the individual when any new cases make their way to the court. If we conflate the finding in the Indiana voting case decided earlier this year (Crawford v. Marion County) with any future gun licensing set of requirements we might be onto something. The Court decided in Crawford that the burden placed on an individual to procure a state-issued photo ID (“just pop down to the DMW on your off time”) was not a burden too great in order to maintain your right to vote. If future gun control laws require a thirty-day waiting period, a background check, a licensing fee, an annual or biannual renewal, then it seems reasonable – it’s some time and money out of your pocket but you can have your gun if you follow the rules; rules put in place for the public good. Of course, what I think is, “Why would anyone need the immediate purchase of a handgun anyway?” Why would waiting x number of days be an issue? Let’s say you come running into my legal, gun-issuing storefront (call it “People Kill People Guns”) and need a handgun right now, or by close of business tomorrow; the law may have decided that you don’t actually need it this minute but you can have it after meeting whatever requirement are in place. If you feel you need a handgun for defense in your home, you can have it – in your home. There’s no requirement for allowing either open carry or carry-and-conceal permits. If you have a gun and you need to come on down and renew its license then you’ll have to prove you still have the gun in your possession. It’s really no different than if you come down to renew a driver’s license: you need to prove your residence, prove your insurance status, and they’re going to make sure you’ve paid all your tickets. Thanks to the very clear language of the court’s decision it appears there are plenty of steps laid out before those that desire better gun control.

can i see some id?

At some point it was either Andrew Sullivan or another commentator that remarked, concerning gay marriage, that “I don’t have to justify my civil rights.” There’s a ton you can read into that little phrase and all of it should be good. No one should have to stand up and defend their right to vote, marry, speak their mind, write what they think, create their art, sing their song, or dance their dance. Unless there is proof positive that an action is harmful or detrimental to society then there can’t be a law that forbids that action.

The Court decided today, if that’s a reflection of what happened (it seemed more a 3-3-3 split…Scalia, Thomas, and Roberts together...surprise!), that you must have photo ID to vote in Indiana. I ran through my little mind’s input when this was argued but now you can read commentary on the result – as if you will. Slate has some blogging from their folks, Michelle Malkin pipes in (I’ve got to be fair), and scotusblog adds a few shillings to the fray. What I found most interesting was the scotusblog bits about this really being a Republican-driven action in order to…make up your own mind.

This is a case that fully limits facial challenges to the court. The facial bit (I live with a lawyer-to-be) means that you cannot challenge a law that adversely affects you until you can prove that you’ve been adversely affected by some inane law (I can’t help it). Think about challenges to the separate but equal idea for schools – under the current Court they’d tell you that in order to challenge that law as unconstitutional you’d have to prove that discrimination is wrong after the fact – let us discriminate and they you prove it…dare you! Passing a law that discriminates is fine because it isn’t hurting anyone unless they tell us it’s hurting them. That’s a very nice modus operandi.

“Okay, Here’s what I’m going to do for you – I’m going to punch you in the face. Don’t worry, it’s okay until the point-in-time where you tell me it really hurts like a son-of-a-bitch. What? You think it’ll hurt and you don’t want me to do it? Sorry, doesn’t work – you don’t know it’ll hurt until it does hurt so standstill and so let’s give it a go….”

One last nugget: it’s not just a photo ID, it’s a photo ID with an expiration date. My retired military ID card (as I’ve already pointed out) has no expiration date so I can’t use it to vote in Indiana.

Ah, sign of our times.

T

it's omar! omar's coming!

It might go without saying but I’m interested in today’s Heller case before the Supreme Court. I thought of taking the day off and heading down early to see if one could get in for oral arguments but I’m glad I didn’t – the lines were way down the street even yesterday. The court is releasing the argument immediately after it finishes and it should be up (CSPAN.org) at about 11:15am (EDT).

Heller addresses D.C.’s 30-year-old ban on handguns. Don’t read any more into that than need be. The reason that cert was granted is for this and this alone:

“Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.”

So, Get your panties unbunched and feel free to slap around anyone who intimates that this case will decide whether or not the good folk of D.C. (and other jurisdictions) will still be able to protect themselves in their homes with shotguns and rifles – they can fire away, as one might say.

I’ve long been a proponent of outlawing all handguns, period. You have a handgun and you’re under arrest. I’d give time, maybe months, for people to turn in handguns and receive compensation but they’d be well aware that after day x, no more handguns. I know I’m crazy. As far as defending my home from invaders I’m of the mind that a couple of good shotgun blasts across the bow of the living room has a much better chance of downing the baddie than me waving a pistol around in the dark – that’s my first stance against handguns. Second, I don’t actually buy into the idea that more guns, with people arming up because everyone else is arming up, is a solution. And finally, unless you’re a badass like Omar from The Wire you’ll have a tougher time killing people and hiding weapons if you can’t have a hand gun in the back of your pants. Trust me...Omar doesn't care one bit about blasting away with the big gun.

T

i pity the fool

It’s been a week (and some…) since an entry?

Some sleet and snow fell last night and is supposed to return later this evening and into tomorrow AM. Isn’t that a great update on life?

X and her mother spent six days gallivanting around Catalonia Spain and returned safely on Tuesday afternoon. I fetched the weary travelers from Dulles Airport and shepherded them home for a day or two or recovery rest.

There was an interview that occurred somewhere, at some time, last week that involved a very close version of this question-and-answer session:

Panel: So, what kind of hobbies do you enjoy?
Interviewee: I like golf.
Panel: Anything else that interests you?
[pause]
Interviewee: I’m really into UFC, the Ultimate Fighting Championship.

Now, let’s just say that I was a part of the panel for the purposes of reviewing this little nugget of joy. If I was there, and I may or may not have been, the first thing I’m wondering – and asking shortly after my brain stops – is this, “Oh, so you participate in mixed martial arts?” When I define hobby I think about something that is participatory, at a minimum an idea that involves some thought of bodily movement. After the first interview question and answer I would have believed that the interviewee, someone I’ve now dubbed Rampage Jackson, as a member of the great golf-playing segment of our population. Maybe he’s a 15-handicap that enjoys spending his weekend perfecting his short game. After the second question I’d really be impressed because the answer addressed another active and newly interesting hobby – mixed martial arts. Dang! Ol’ Rampage Jackson plays golf on Saturday and then steps into the octagon on Sunday in preparation for his upcoming tussle with Chuck Liddell at UFC 96. That is someone I want in my workplace: golfer and ass kicker. Let’s continue…

Panel: We don’t know much about Ultimate Fighting…sounds interesting.
“Rampage”: Man. I’ll tell you something, I love cable TV.

What? He loves cable TV? That’s a hobby? I can’t believe two things: first, we would fall for the golf and UFC inputs and not think it was actually based on watching those events on TV. Second, who the hell tells an interview panel that they love cable TV (and, apparently, digital video recorders)? I’m keeping that technique in my pocket for any future interviews.

I’m heading into the District this evening for a Steven Breyer get together at the Sixth and I Synagogue. He’s being interviewed by a legal correspondent for The National Review. And let me tell you something, that’s a hobby to pass along during an interview, “I enjoy attending events that peg me as a dork….”

I can live with that.

T.

maybe next decade

Here’s the Senate definition of cloture:

“The only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes”

It wasn’t the immigration bill being voted on over the last month and most people have no recognition of that fact. The Senate majority pushed for a vote on cloture in order to limit the debate on the bill, not to vote on the bill, and end the Republican filibuster. Why not vote for cloture, limit the debate to 30 hours, and then vote on the bill? If the majority votes ‘nay’, so be it. What this really leads to one is overriding conclusion: there are 50 senators that are willing to vote for the bill; if it weren’t true, why filibuster? In fact, the 43-56 final tally from today’s cloture vote is horribly misleading. I was running a simple tally while listening to the vote and once the ‘nays’ hit 41, effectively ending the motion, there was a flurry of out-of-the-woodwork votes by senators who passed on the first round. Now they can inaccurately claim to have voted against the reform even though they didn’t. The list that I jotted down (those that threw in the late ‘nays’) includes: Barrasso, Collins, Byrd, Brownback, Coleman, Cochran, McConnell, Brown, Warner, and Inhofe. The net effect is that the people are held hostage by the nine senators that make up the gap between the 51 needed to pass the bill and the 60 needed for cloture. I suspect the number is truly less than nine, probably closer to four or five that ended the debate. I defy anyone to ask the next ten people they come across three questions:

1. Did they vote on the immigration bill today?
2. Do you know any three details of the immigration bill?
3. Would you support the bill?

It would be enlightening. I'll guess that 8 of 10 would say they did vote on the bill; probably 9 of 10 couldn't give three details of the bill; at least 6 or 7 of 10 would support the bill. It's all horribly embarrassing.

I see the Supreme Court finally issued the decisions on the Seattle and Louisville schools. The ’08 election is just as much about the next two Supreme Court openings as it is about President. I was going to invite Roberts and Alito up for the weekend…nevermind.

Love to all.

T.

what is he on about?

Right. Last Thursday presented a couple flying chips of grammar that got caught in my eye. The first was in Justice Ginsburg’s dissent in Gonzales v. Carhart where she uses the sentence “Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence…” I immediately reached up and grabbed my Concise OED, hurdled over to Webster’s online, and checked with Wikipedia for enlightenment. I’ll just paraphrase a combo platter of what it means: customs, principles, or beliefs that distinguish groups of people. It also means a slogan, catchword, saying, or belief that has little meaning or truth. As if reading slip decisions isn’t difficult enough? I’ve got to deal with Ginsburg and Scalia chucking in words that I need to cross-reference? Even with my complaint lodged, I’ll be trying to sneak this into conversation at the big ‘do on Saturday night in Clarendon (X is the coordinator of this law journal spending spree, ask her. I think I’m supposed to be nice.)

The other turn of phrase that caught my attention was in Sen. Arlen Spector’s opening remarks during the Gonzales testimony last week (psst. Go to Spector’s Web site and tell me that picture of him is current). I love this one, “was replaced because she was hot on the trail of confederates of former Congressman Duke Cunningham…” Hot on the trail of confederates! If I weren’t so grammatically inept I’d more often take the time to ponder terms like confederate, and I’d correctly think of confederation as groups, joining of peoples, allies, etc. Instead, I’m just a dope that always associates the word with the Confederacy; my mind turns to thinking ‘bad guys’ as opposed to a grouping of like-minded folk. Allies and Axis in WWII seem to make sense, but Union and Confederacy in the Civil War are two words for the pretty much the same thing. Ah, who knows? What I like about confederates as allies, pals, all for one and one for all, is that I can stop referring to my 401 bus confederates as carnies. Confederates all.

On a lighter note, G asked me during bowling last Saturday what the term Turkey meant, and where it originated. What you might think is that it came from the big gobble-gobble birds we eat at the Holidays. Well…you’d be right. At the time, I had no good story to pass along from my years of keggling, but it seems to be quite a simple origination. In the early 20th Century it was much harder to get three strikes in a row, so during the holiday weeks proprietors would offer a live bird to the first player on each team to get three strikes in a row (also from Wikipedia). You’re not free of bowling terms yet, not by a long shot. Another bowling term’s history came to my attention as I was rooting around, “Brooklyn”. I know from a Brooklyn, because my Brooklyn ball is quite good, especially when it’s just peaking across the headpin. It seems to have originated from the days when people crossed over from Manhattan to Brooklyn, and is the term for right-handers hitting the 1-2 pocket. Fair enough, but confusing when I look at a map. A side term is apparently “Jersey side” which describes the same crossing over for left-handers (the 1-3 pocket); representing travel from Manhattan to Jersey. Now I’m really off on this whole thing. Seriously, look at a map and you’ve got Manhattan in the middle (say it’s the 1 pin), Brooklyn to the east (say it’s the 3 pin), and Jersey to the west (the 2 pin). If I’m right-handed and crossover the headpin and hit the 1-2 pocket, I’m so in Jersey. If I’m left-handed and crossover to the 1-3 pocket, I’m sitting in Mr. Kotter’s classroom getting hounded by Mr. Woodman – that’s Brooklyn! I think wikipedia is all messed up on this one. It seems that what they mean to say is that if you’re IN Brooklyn they call any cross over a Jersey, if you’re not in Brooklyn any cross over is a Brooklyn; so Manhattan is the center of the bowling universe? Jeez. Further research yields this: both terms represent the cross over pocket for both types of bowlers – it just depends where you happen to have learned your bowling terminology. The “Jersey Side” action committee doesn’t seem to have found a foothold in Middle America.

This is the most useless entry I’ve ever written, and I’ve written some useless ones…


T.

emperors III, etc.

The John and Elizabeth Edwards announcement / interview / declaration generated a lot of reflection not only on his campaign but what was apparently already known in politico circles; she is the stronger character in that partnership. Politically, I never cared much for Edwards as a candidate and I’m not sure how this will affect his campaign in the short term. In the final solution I don’t think he’ll continue his presidential campaign for much longer.

Bill Richardson was on Jon Stewart last week – bonus points for that (I should get his book). The rest of the Dems are keeping their heads down, even the Hillary / Obama Apple mash-up video didn’t much interest me. I remember the commercial in its first iteration and never thought it was as ground-breaking as everyone else believed. A few numbers change, particularly an increase in the Edwards numbers for everyone else, a drop in my Edwards numbers because I don’t think he’ll be running come summertime.

I find it hard to believe that Giuliani has a 20 point lead on McCain in ANY poll. I’m sticking to my guns on Giuliani not having a chance at the nomination but I’ll give him a few more points just ‘cause. I think the polls only reflect what most Americans know about Giuliani – being mayor of NYC on September 11th. Once his stance on the issues come to the fore the numbers will drop. The winds blowing around Fred Thompson thinking about entering the campaign have been interesting but I don’t know enough about him, politically, to make any kind of judgment. The most I can say about him is that he speaks well.

Democrats	My Vote	The Nation
Clinton	23	42
Obama	27	32
Richardson	40	4
Edwards	5	20
Dodd	1	0
Biden	3	0
Kucinich	1	0

'Publicans	My Vote	The Nation
McCain	85	55
Giuliani	10	25
Romney	5	15
Brownback	0	5
Hunter	0	0

Yes, I read the Supreme Court slip decision (at least the dissenting opinions) on the EPA case. I know! I can’t help it. I learned what parens patriae means and will work it into my converations as often as possible.

Nothing else for now. Warm this week, colder over the weekend. Feel free to quote me if required.

onions

I’m waaaay behind on the politics. I started some work on Joe Biden, got distracted on the Clarence Thomas hearings, and haven’t got back to my assignment (I’m sure I’ll be docked when grading comes around). Here’s a link to Justice Thomas’ statement to the Senate Judiciary Committee at the end of the confirmation hearings way back in 1991. What intrigues me is the fact that there is no way we’ll ever hear a nominee for a judgeship or political office speak out publicly as Thomas did that day. Not in America, not in these days while everyone is simply trying to not say anything. Those hearings were something and remember watching snippets of them over lunch while stationed in England and thinking just how shameful the behavior was. I don’t know the truth or untruth behind the accusations, nor would I try to parse out the "he said, she said" testimony in 2007, but I admire the delivery.