Stone Court

Well, I finally agree with something George Bush said -- that the Osama tape helped Bush's 2004 election. The only part I doubt is that it was "inadvertent". My reasoning here.

Nice work by Josh Marshall tracking down UAE's lobbying/law firms, which include Patton Boggs LLP.

That's the same firm that has represented the Bush Campaign, Karl Rove personally, and the Swift Boat Veterans for Lying About John Kerry.

Just sayin'.

The Supreme Court has granted certiorari to hear a case raising the constitutionality of the federal Partial-Birth Abortion Ban of 2003.

Agreeing to hear this case is the ultimate in judicial activism that the right purports to abhor. Consider that the Supreme Court already held just such a ban (imposed by Nebraska) unconsitutional just six years ago in Stenberg v. Carhart. Consider that all three federal Courts of Appeals that have addressed the issue have held the federal statute to be unconsitutional. Consider that the Supreme Court's own Rule 10 indicates that typically certiorari is granted only when (a) federal Courts of Appeals disagree with each other or state high courts; (b) state high courts disagree with each other; or (c) another court has decided an important federal issue that has not been, but should be, decided by the Supreme Court. None of those three usual bases for certiorari is even colorably implicated here.

The only thing that has changed since the 5-4 decision in Stenberg v. Carhart is the composition of the Court. We will soon get to see the product of Alito's "open mind" on abortion. Until then, I will keep an open mind on his honesty before the Senate Judiciary Committtee....

I love learning new voacbulary words, especially when they come from conservative columnist George Will smacking down the Bush administration:

Administration supporters incoherently argue that the AUMF also authorized the NSA surveillance -- and that if the administration had asked, Congress would have refused to authorize it....

The administration, in which mere obduracy sometimes serves as political philosophy, pushes the limits of assertion while disdaining collaboration.

Even better, for the coup de grâce, Will goes all French on Bush:

This faux toughness is folly, given that the Supreme Court, when rejecting President Harry S Truman's claim that his inherent powers as commander in chief allowed him to seize steel mills during the Korean War, held that presidential authority is weakest when it clashes with Congress.

Faux toughness -- maybe not as bad as being a lap dog -- but not much better either.

As she often does, Elizabeth at Half-Changed World has spurred me to write down thoughts that have been rattling around inside my head. She writes this about the nature of feminist marriage:

But what makes a marriage feminist is the recognition that no couple is making their choices in a vacuum, that there are societal forces shaping those decisions, a lot of history hanging over you. And as a result, it's easy to drift into patterns that perpetuate inequality, so you need to keep paying attention if you want to keep things in balance.

The tricky part is figuring out how to pay attention to these things without it degenerating into petty scorekeeping, where every last dirty sock or wet towel left on the floor is recorded for history. Perhaps the definition of a good marriage is one in which each party thinks that the other is doing more than their share of the work.

(Emphasis added.)

The highlighted sentence is important, and at the same time problematic. The problem arises because choices are easier to make in a feminist marriage when they are non-"traditional". For example, I do most of the cooking, and Mary does most of the mowing and yardwork. This is a good thing, I think, because each of us gets to do more of what we enjoy, though there are times when each of us feels these tasks are drudgery, and also times when each of us feels we should contribute more in the other area.

If the situation were reversed, however, I think we would both feel more uncomfortable with the division of labor. Why? In a sense, it shouldn't matter, since we would both still be doing more of what we enjoy. On the other hand, I think we would worry about to what extent we were implementing our own choices, and to what extent we were simply surrendering to the "societal forces" Elizabeth refers to. And, honestly, I think we would feel uncomfortable sending the message to the world that we approve of stereotypical sex roles. But on the third hand, if those concerns cause us to shy away from our perceived preferences, wouldn't that be giving power to the very sex role thinking that feminism decries?

This problem -- how to balance the world we have and the world we want to have -- is a recurring challenge for feminism. For example, should a feminist favor increasing joint-custody arrangements after divorce because we believe that men and women should have equal responsibility for raising children, or should she or he oppose that trend because, in the world we have, women usually have a greater role in childcare and therefore maternal custody is more often less disruptive for children? Amanda addressed a similar issue with her "balls ad" -- how does a feminist who is comfortable in principle with sexual imagery deal with the real world where "women and only women are considered appropriate symbols of Sex Itself"?

I don't have the answers to these questions, but it seems to me that they are persistent and recurring.

... if you are a ranch hand with a Spanish surname:

An undocumented Mexican immigrant was shot and killed Sunday evening in an apparent hunting accident on a Webb County ranch owned by the family of former U.S. diplomat John G. Hurd.

"The illegals were crouching out in the brush. They said they mistook this guy for a hog," said Webb County Sheriff Juan Garza....

Juan Garza Mendoza, 34, an employee of the ranch, was charged Monday with manslaughter, a second-degree felony punishable by up to 20 years in prison....

Mendoza had apparently hit Barrera Vasquez while shooting at a feral hog, and immediately contacted authorities after the shooting, Hurd said.

Sheriff Garza said interviews with three of the victim's Mexican traveling companions and the others in the ranch hunting party led him to rule out anything but an accidental shooting.

"They mistakenly shot a human being," he said. "It's reckless. It's inexcusable."

John MacCormack, "Immigrant shot to death on ranch; Webb sheriff rules it an accident. Man charged with manslaughter", San Antonio Express-News, June 3, 2003, at (via Lexis($)) 1B (emphasis added).

(Garza was later indicted by a grand jury, though prosecutors "dropped the charge ... pending the outcome of a civil lawsuit", Jesse Bogan, "2003 immigrant shooting case may get new look", San Antonio Express-News, Sept. 7, 2005, at 3B, which I take to mean that he is still potentially on the hook criminally. The same article reports that prosecutors were also considering indicting "Jaime Gonzalez, 36, of Eagle Pass, [who] shot Celestino Lopez Espino, 34, in the evening hours while hunting for hogs on a ranch in El Indio in January 2003. He and his hunting party immediately hauled Lopez to a hospital, but he died en route.")

Amp links to Phyllis Schlafly's unhinged diatribe against marital rape laws.

Her article focuses on a fellow in Michigan who was, supposedly, wrongfully convicted of raping his wife in the midst of divorce proceedings. This miscarriage of justice, she claims, is the result of evil feminists:

A man's life has been sacrificed, and three children have been denied their father by malicious feminists who have lobbied for laws that punish spousal rape just like stranger rape and deny a man the right to cross-examine his accuser. They have created a judicial system where the woman must always be believed even though she has no evidence, one in which the man is always guilty.

The logic of this argument is incomprehensible. Most of Schlafly's piece is devoted to arguing that the defendant was, as a factual matter, not guilty. But, of course, if he's not guilty, why does that show that criminalizing marital rape is wrong? Do we repeal murder laws because sometimes people are wrongly convicted of murder? Does Schlafly really mean that this defendant should have gone free if he had raped his wife?

If she was having a lucid moment, Schlafly's response might be that her real problem is that the conviction of a supposedly innocent man was caused by a rape-shield law. The problem is Schlafly lies about what rape shield laws do, claiming "The judge used Michigan's new Rape Shield Law to prohibit cross-examination of Linda" and that rape shield laws "deny a man the right to cross-examine his accuser". This is false. There is no prohibition on cross-examining an alleged rape victim. Rather, rape shield laws prohibit a particular category of cross examination -- examination concerning prior sexual conduct ("You consented to sex with Joe, so why shouldn't the jury believe that you consented to sex with defendant?") Rape shield laws can be problematic in close cases, but it is difficult to see how this is such a case. Whatever the legitimate value of evidence of a victim's prior sexual conduct in the case of stranger or date rape (and in most cases the value is quite low), its value is clearly at its lowest in the case of marital rape, where the jury should readily be able to infer consent if the evidence supports such an inference. Think about it. What's more persuasive evidence of consent: You had sex with Joe ... or You're defendant's wife? Indeed, if the defendant wanted to get in evidence that Linda was having extramarital sex, that would if anything tend to negate his claim of consent, at least if you believe that wives who are having extramarital affairs while they are seeking a divorce are less likely to want to have sex with their husbands than those who are not -- in which case it is pretty clear that the only purpose of the evidence would have been to smear the victim.

What is most sad, though, is how much of the piece reads like a liberal critique of prosecutorial abuse of authority. Here's a taste, but go read it -- most of it sounds like it could have been written by Bob Herbert:

The sentencing guideline for this new offense was 12 months to 10 years. But, without showing cause, the judge sentenced him to 15 to 30 years (twice the time served by the average convicted rapist in Michigan). Twenty years later, despite an exemplary prison record, the parole board routinely refuses to parole him, giving as its sole reason "prisoner denies the offense."

Hetherington has always maintained his innocence....

[T]he criminal court ruled that he was not indigent and refused to provide him with a lawyer.

For 12 years, the court refused to provide Hetherington with a transcript of the trial. Without funds, he was unable to buy one, so he was effectively denied his right of appeal....

Ten years after Hetherington's conviction, a volunteer attorney ... obtained copies of five photographs taken of Linda by police at the alleged crime scene immediately after the alleged offense. The photographs were in a locker in a police garage. The prosecution had never disclosed them to the defense....

...the pictures of Linda showed absolutely no scratches, tape marks or abnormalities of any kind, and that marks would have been clearly visible if there had been any. If a government witness gives false testimony a convicted prisoner should be entitled to a new trial. But Hetherington didn't get one.

Years later, a completely unsolicited letter was sent to the parole board by Melissa Anne Suchy, who had been employed by Linda as a baby sitter. Suchy's letter is hearsay but has the ring of authenticity.

Suchy wrote that Linda told her she made up the story about rape because she was then pregnant with the baby of her boyfriend....

Over the years, several pro bono lawyers and concerned citizens have tried to secure a pardon or a parole for Hetherington, but Michigan appears determined to make him serve 30 years because he won't admit guilt and because the bureaucracy won't admit it made a mistake.

I'm glad Schlafly has suddenly found compassion for the wrongly accused. I only wonder why it took a convicted rapist to bring out her compassion.

A new AP-Ipsos poll is being touted as showing "the president's monthlong campaign to convince Americans the government's eavesdropping program is essential to the war on terrorism appears to be making an impact":

In a new AP-Ipsos poll, 48 percent now support wiretapping without a warrant in cases of suspected communications with terrorists, up from 42 percent last month. Half say the administration should have to get a warrant, down from 56 percent.

The poll does show such a swing, although it is within (barely) the poll's +/- 3.1 margin of error (and the public results do not compare demographics from the two samples). While the poll probably does, therefore, suggest a modest shift in Bush's favor, an equally critical point is that both the earlier and the later polls are framed to overstate the pro-Bush response. Here's the question:

Should the Bush administration be required to get a warrant from a judge before monitoring phone and internet communications between American citizens in the United States and supspected terrorists, or should the government be allowed to monitor such communications without a warrant?

Well, OK. I'm a lawyer, so I think you should get a warrant even when you suspect someone is a terrorist. But I can see how 42% of Americans would think that's just a legal formality that's not all that important. The problem is, the question does not seem to be the program that is in place. It is, essentially, how the Bush administration describes the program. But, as far as can be determined, what seems to be going on is a large data-mining operation that goes far beyond suspected terrorists. The Bush administration won't say how many people were being monitored, but the Times ($) has reported that thousands of leads were followed each month, and that it is possible that none of them led to actual terrorists -- and today the Washington Post reports that not even the Administration's point man at the FISA court knew exactly who was on the list.

And, of course, the question doesn't mention that the program is almost certainly illegal.

UPDATE: And while we're on the subject, I'd like to see a control poll of the same language with "criminal" replacing terrorist. My guess is that popular support for the warrant requirement in general is relatively weak.

From AOL's "AIM Today"* (Jewelry tab):

Fact: Girls
Love Jewelry
And come the 14th, if they don't get
any, NEITHER WILL YOU.

What does he want?
Come on, ladies, be nice.

So what's worse, that AOL wants men to buy sex, or that it wants them to buy sex with "girls"?

If you're not sure, click AOL's "All Grown Up" tab, where you are reassured:

Relax. They're
Finally Legal
This grown-up celebs gallery
is really hot. Really, really hot.

*AIM's front page changes daily.

Jane Hamsher and Digby , both of whom originally defended NARAL's decision to endorse Lincoln Chafee, both urge NARAL to pull the endorsement in light of his refusal to support the Alito filibuster (followed by a useless no vote when it was too late).

They're right. I don't take the absolutist view that NARAL should never endorse Republicans, because NARAL does have to keep its focus on choice, even if in the big picture a Democratic majority is good for choice. I wouldn't expect NARAL to endorse pro-life Bob Casey if he were running against Chafee, and I might not even expect them to endorse some quixotic longshot over an incumbent and at least nominally pro-choice Republican.

But that's not this election. This is a very winnable seat for the Democrats, and Matt Brown, one of the leading candidates, has the personal and apparently enthusiastic support of Kate Michelman.

What's more, Brown is proud of his support from Michelman, which is touted on his home page.

Is Chafee similarly proud of his support from NARAL? Judge for yourself. Chafee lists NARAL seventh out of eight endorsements listed on his site, and also devotes the second least amount of space to it. NARAL is even behind the North Kingstown Republican Town Committee! What, he couldn't get the main Kingstown Republicans to endorse him?

According to the AP, armed Palestinian militants "said they were searching apartments for foreigners from several European countries to try to kidnap them to protest" several Danish political cartoons "includ[ing] an image of Muhammad wearing a turban shaped as a bomb with a burning fuse". There have also been "bomb threats and demonstrations against Danish facilities".

So let me get this straight. To protest a cartoon that depicts Muhammad with a bomb, you are going to threaten to kidnap and bomb people in the name of Muhammad. Got it.

UPDATE (2/3/06): From Josh Marshall:

TPM Reader JL: "I know the incident with the cartoons in Denmark is now very difficult, but why has no journalist or anyone else pointed out the irony of the Muslims calling for the violent death of those who dared portray Muslims in an editorial cartoon as violent? Not to mention the anti-Semitic cartoons and print published throughout the Arab world on a regular basis. The situation is very scary. I'd like to read your thoughts on this."

Ahem.

As women in Massachusetts are forced to go to court to require Walmart to carry emergency contraception, and as corporate insensitivity to the need for ready access to EC becomes so great that Target earns praise for requiring pharmacists to fill EC prescriptions or refer them to other pharmacists, Walgreens deserves credit for telling its pharmacists, Just do your job and fill customer prescriptions. Of course, Walgreens is not getting praised, it's getting sued:

On Friday, the American Center for Law and Justice filed a lawsuit in Madison County against Walgreens on behalf of four pharmacists who were suspended without pay after voicing opposition to the company's policy on dispensing the "Plan B" pills because of their personal beliefs.

Walgreens requires all of its Illinois pharmacists to dispense Plan B pills as mandated by Gov. Rod Blagojevich's new state rule, said Michael Polzin, a spokesman for Walgreens. The rule, which is the only one of its kind in the nation, requires that all Illinois pharmacies dispense contraceptives without delay.

"According to the state rule, the prescription must be filled at the same time that it would take to fill a normal prescription. At 5 p.m., that average time is 45 minutes; at 2 a.m. it takes about 5 minutes," Polzin said. "It doesn't give us the option of having a pharmacist on call."

Other major retail pharmacies have not interpreted the order the way Walgreens has, said a statement from Francis J. Manion, senior counsel for the American Center for Law and Justice. The center is a public interest law firm based in Washington, D.C., founded by evangelist Pat Robertson.

"For whatever reason, Walgreens chose not to respect its pharmacists," Manion said. "That's why we're going to court."

I may be going to the new Walgreens in my neighborhood more than I thought....

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