Saturday, February 24, 2018

Gee that's funny, Jacob. I remember a few. Maybe because I'm older.
Andrew Jackson driving the Cherokee tribe on a death march from Tennessee to Oklahoma.
Black people enslaved on plantations, then terrorized by armed militias and deprived of the right to vote for 100 years.
Native Americans driven into Reservations.
And Japanese Americans forced into concentration camps.
I guess it's only white people that the Second Amendment has protected. Or is that your point?

ABA Opinion warns against judges doing online research on facts related to cases

Opinion warns against judges doing online research on facts related to cases
by Raymond J. McKoski// ABA Journal
IFormal Opinion 478, the ABA Standing Committee on Ethics and Professional Responsibility addresses the restrictions imposed by the 2007 ABA Model Code of Judicial Conduct on a judge searching the internet for information helpful in deciding a case. The ABA opinion concludes that Rule 2.9(C) of the Model Code prohibits a judge from researching adjudicative facts on the internet unless a fact is subject to judicial notice.
Rule 2.9(C) clearly and definitively declares that “a judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” Acknowledging the integral part that search engines play in everyday life, Comment 6 to Rule 2.9 bluntly tells judges that the prohibition “extends to information available in all mediums, including electronic.”
While recognizing that the internet, including social networking sites, provides immediate access to a limitless amount of information potentially useful to a judge laboring over difficult case-specific factual issues, the recent ABA opinion highlights two important justifications for the prohibition against electronic factual research.
First, information found on the web may be fleeting, biased, misleading and sometimes downright false. Second, unless the narrow judicial-notice exception applies, gathering even trustworthy information from the internet compromises the division of responsibility between the judge and the parties so essential to the proper functioning of the adversarial system. The committee emphasizes this point by describing the “defining feature” of the judicial role as a judge’s duty to base decisions only on evidence presented in court and available to the parties.
The limitations on independent factual research by judges are not solely a matter of judicial ethics. Rule 2.9(C) is one of the few provisions of the Model Code that integrates an evidentiary rule into an ethical standard. Rule 2.9(C) permits a judge to consider a fact from sources other than the evidence submitted by the parties as long as the judge abides by his or her jurisdiction’s requirements for taking judicial notice of the fact. Incorporating a rule of evidence into an ethical rule complicates the analysis because, as noted by the committee, judicial notice standards and procedures vary significantly from jurisdiction to jurisdiction.
To illustrate how Rule 2.9(C) and the doctrine of judicial notice interface, the committee examines Federal Rule of Evidence 201, which governs judicial notice. FRE 201(a) and (b) permit judicial notice of a fact that relates to the parties in a case (an adjudicative fact) only when that fact is “not subject to reasonable dispute” because it is (1) “generally known” or (2) “accurately and readily determined” from a source “whose accuracy cannot reasonably be questioned.” Even if a “fact” meets this rigorous test, the judge must provide the parties with an opportunity to contest the need to notice the fact and a chance to challenge the accuracy of the fact. Like most state rules governing judicial notice, the federal rule only bars judicial notice of adjudicatory facts. The doctrine does not restrict a judge’s independent research of legislative facts, such as statistical, sociological and economic studies, which differ from adjudicative facts in that they are not unique to the litigants but are facts that assist a judge in deciding questions of law or policy.
The committee offers four guidelines to help judges determine the ethical propriety of investigating facts on the internet. Because the guidelines are by necessity general in nature, the committee also provides hypothetical scenarios to illustrate their application.


Strange Days - Trump at CPAC

Wednesday, February 21, 2018

The Trolling of the American Mind - The New York Times

The Trolling of the American Mind - The New York Times
by Ross Douthat

This is actually the most straightforward and sensible piece I've seen by Ross Douthat.  The big question is why was the 2016 election so close?  Why did millions switch from Obama to Trump?  Why were they not repelled by Trump? Why am I repelled by photos like that above of white crowds pledging allegiance?  Because to me the ritual has become the embrace of hostility and mean spiritedness - divisiveness and resentment masquerading as solidarity.   - gwc

"The bottom line is that liberal mandarins in the West — not just in America — face a hard choice when it comes to the populism that gave us Trump, Brexit and right-wing parties and governments in Central and Eastern Europe. Should this re-emergent nationalism be conciliated and co-opted, its economic grievances answered and some compromises made to address its cultural and moral claims? Or is it sufficiently noxious and racist and destructive that it can be only crushed, through gradual demographic weight or ruthless polarized mobilization?

The Russia fixation, at its worst, is a way to make the second choice without admitting that you’re making it — to pretend that in trying to crush your fellow countrymen you’re really fighting traitors and subversives and foreign adversaries, to further otherize the domestic out-group by associating them with far-off Muscovy.
Trump’s election was, indeed, a sudden shock in a long-running conflict. But it does us no good to pretend the real blow came from outside our borders, when it was clearly a uniquely hot moment in our own cold civil war."

When Reagan was shot....

Not to mention when the Pope was shot.

Why The Trump/Russia ‘Skeptics’ Are Wrong – Talking Points Memo

Why The Trump/Russia ‘Skeptics’ Are Wrong – Talking Points Memo
by Josh Marshall

Over the weekend, several prominent news media figures announced themselves as Trump/Russia skeptics. Politico’s Blake Hounshell seemed to kick off the discussion with this essay. This isn’t “fake news” type skepticism. It’s much more focused and I think reasonable. These folks fully grant the extensive and multi-pronged Russian effort to interfere in the 2016 election. That involved fake news, email hacking, and multiple approaches to Trump associates to gauge interest in working together. The skepticism is whether we’ll ever find a proven and explicit agreement between President Trump and Vladimir Putin or some other similarly high-level Russian official to collaborate in subverting the 2016 election. If not documented proof of such an agreement then at least well-attested evidence of the same.
Relatedly, they say that the Trump campaign just didn’t seem organized enough to manage a full-blown conspiracy (a frequent explanation from the Trumpers themselves) and that if they had Trump is too impulsive and intemperate not to have spilled the beans by now.
I wanted to respond to these claims and doubts both because I partly agree with them but also because I think this read is based on basic misunderstandings of the nature of offensive intelligence operations and, simply, human nature.***

Justice Thomas delivers pro-gun rant just days after the Parkland shooting – ThinkProgress

Justice Thomas delivers pro-gun rant just days after the Parkland shooting – ThinkProgress

by Ian Millhiser

Tuesday is the Supreme Court’s first day in session since a gunman walked into Marjory Stoneman Douglas High School in Parkland, Florida and murdered 17 people. It’s also the day Justice Clarence Thomas picked to deliver a 14-page rant about the fact that it isn’t easier to buy guns in the United States.
California law requires most gun purchasers to wait 10 days when they wish to buy a gun. This waiting period gives state officials time to run a background check on the buyer, and also creates a “cooling off” period allowing someone who intended to give “individuals who might use a firearm to harm themselves or others an opportunity to calm down.”
The plaintiffs in Silvester v. Becerra claim that they should not be subject to this waiting period because they either already own guns or already have a concealed-carry license — and Justice Thomas seems to agree with their argument.
“Common sense suggests that subsequent purchasers contemplating violence or self-harm would use the gun they already own,” the justice claims, “instead of taking all the steps to legally buy a new one in California.”....

Tuesday, February 20, 2018

Is American Policy toward China Due for a ‘Reckoning’? | ChinaFile

Click through for Commentary by a boatload of China experts.
Is American Policy toward China Due for a ‘Reckoning’? | ChinaFile
A ChinaFile Conversation
In a February 13 Foreign Affairs essay, former diplomats Kurt M. Campbell and Ely Ratner argue that United States policy toward China, in administrations of both parties, has relied in the past on a mistaken confidence in America’s ability to “mold China to the United States’ liking.” They call for a new U.S. approach to China, one which faces the degree to which China’s actions have diverged from U.S. expectations, discards the notion that economic liberalization would lead China to political openness, and acknowledges China’s failure to acquiesce to an American-led security order. Is Campell and Ratner’s characterization of the shortcomings in the U.S. approach persuasive? What should a newly clear-eyed U.S. policy entail? —The Editors

Thursday, February 15, 2018

The Killer, Trump, Kennedy, Obama, McConnell

The shame of it all.

Sunday, February 11, 2018

The Demagogue as President: Speech, Action and the Big Parade - Lawfare

The Demagogue as President: Speech, Action and the Big Parade - Lawfare

by Bob Bauer (former White House Counsel to President Obama)
***this is the crucial point: How Donald Trump constructs his attacks makes all the difference. The , which defines the president’s leadership style, changes the rules of the democratic game. It savages any and all constitutional, institutional and as necessary legal limits the leader deems inconsistent with the pursuit of personal interests and self-aggrandizement. It works to make the abandonment of these limits plausible now to the audience he is trying to reach. In the service of its goals, demagoguery features extreme appeals and—critically—a reckless indifference to the facts, even outright lies.
The “moment” Trump seems to be striving for cannot arrive and serve his purposes unless he builds toward it with his speech. He is creating conditions now to support further action later; but the creation of those conditions, though by words, is itself an activity. If later Trump refuses Mueller an interview, supported by the groundwork previously laid, it will be correct to say that the move depended on what he did to set the stage. In other words, Trump is seeking to accomplish something with his demagoguery.
The Founders understood that demagoguery was not an idle matter of mere words. As the political scientist Jeffrey Tulis , their concern with demagoguery was one of the “core issues behind the practical structural decisions for the national government and the place of the presidency in it.” Those structures have, of course, undergone radical change and the safeguards originally erected against the demagogue have withered. But it does not follow that because the protections have begun to fail, we should be less troubled by the pathology they were intended to defend against. The word/action distinction operates to make it less likely that we will take the pathology seriously—until “things have happened.”
Demagoguery as the defining feature of political leadership is very much happening. As Tulis has stressed, “rhetorical power is a very special case of executive power … it is a power itself.” So it is a mistake to dismiss demagogic practice on the grounds that it is pure speech that, even if regrettable, can be otherwise disregarded until the occurrence of some related “action.”

China: As NPC approaches end of five year term, new five year legislative plan begins to take shape

China continues to elaborate and refine its legislative structure, making it more comprehensive and detailed.  This is a substantial advance in "governing by law" 法治国.
At the same time - as this Fordham IPLJ Conference will explore - the environment for dissenters has grown more repressive. - gwc
NPCSC to Prepare for Upcoming NPC Session & Revise Oath-taking Provisions – NPC Observer
FYLP Completion Rates

Saturday, February 10, 2018

Thursday, February 8, 2018

Looks Like Trump’s Reined in Kelly, Not the Other Way Around - Daily Beast

The meme that General Kelly is a grownup has always been the product of wishful thinking.  We know that barely below the surface of even respectable Republican thought is the sense of superiority (e.g. Chuck Grassley saying that contrary to investors those who don't save spend their money on wine, women and movies).  Kelly's notorious rant when he attacked Congresswoman Wilson showed us why he fit in at the Trump White House.  His behaviour regarding Rob Portman, Hope Hicks's wife-beating boyfriend, is just the latest evidence that there may be no adults in the adult daycare center. - gwc
Looks Like Trump’s Reined in Kelly, Not the Other Way Around
by Margaret Carlson// Daily Beast

John Kelly, the four-star general brought in to be father to a bumptious son who happened to be president of the United State, was not supposed to turn out like his charge.
But with Kelly’s remark that a lot of Dreamers were “too lazy to get off their asses” and his knee-jerk defense of White House staff secretary and alleged wife-beater Rob Porter, Kelly has come to resemble the man he was supposed to uplift instead of the other way around. 

Trump's Toolkit Does Not Include the Constitution. Thomas Edsall

Trump’s Tool Kit Does Not Include the Constitution

Wednesday, February 7, 2018

Netanyahu lashes out at Israel's top cop and questions police: 'A heavy shadow has fallen on investigations against PM' - Israel News -

It's contagious.
Netanyahu lashes out at Israel's top cop and questions police: 'A heavy shadow has fallen on investigations against PM' - Israel News -
Netanyahu responded to the report that he his "horrified that the police chief is repeating ludicrous and false innuendoes as if Prime Minister Benjamin Netanyahu sent private investigators against police officers investigating him," a statement posted to his Facebook page said late Wednesday. "It is horrible that he repeated before journalists Rittman's false and ludicrous idea, as if the prime minister was somehow involved in orchestrating sexual harassment complaints against Rittman," the statement said, going on to question whether an officer facing such allegations should be allowed to play a role in the investigations.
"Every decent Israeli will ask themselves whether people who say such ludicrous things can continue to investigate the prime minister objectively and give recommendations [for indictments] in an honest manner. A big shadow has fallen over the police investigations against the prime minister," the statement said, demanding the police chief's claims be investigated. 
Asked why the police aren’t investigating this information gathering operation, Alsheich responded during the interview, “It doesn’t always serve our main investigation, at the moment. Therefore, there are sometimes situations in which it’s not convenient for us to open an investigation about something, so as not to disrupt or pollute another investigation.”

Stock Market Joins Anti-Trump Witch Hunters


Saturday, February 3, 2018

The damage done: the Nunes Memo

Exploration of bias is can be the cheapest shot and the most important investigative tool.  Our biases are our passions - the force which drives us to excel and to slaughter, to truth and to denial.  The Nunes memo identifies some bias: that FBI agent Peter Strzok loathed Donald Trump.  But such biases usually yield to honest investigators search for truth. 

The Nunes memo is of the cheap shot variety.  He insinuates bias from thin evidence and encourages inferences - of malevolence - utterly unsupported by the evidence.  Before an honest tribunal such an attack would matter little. 

But the electorate is not an honest tribunal: it is a force deeply divided in their passions.  And the side to whom Devin Nunes and Donald Trump appeal are those with an already jaundiced view of government.  Honed by years of talk radio, Fox News and the bitter commentary seen on the web, a large part of the electorate is primed to detest government and the party of government - the Democrats.  That group is ready to leap quickly from finding a Democrat in the FBI to joining the chorus crying "witch hunt".

The damage done by the insubstantial Nunes memo therefore is likely to be great. - gwc
Click link for Josh Marshall's first thought and the full text of the memo.
First Take: The ‘Nunes Memo’ Is Even Weaker Than Expected – Talking Points Memo

Friday, February 2, 2018

Former FBI Director Comey blasts Nunes memo

Not much more needs to be said.

Trump Has Got Democrats Right Where He Wants Them - The New York Times

Trump Has Got Democrats Right Where He Wants Them - The New York Times
by Thomas Edsall

This is a typically hard-headed Edsall analysis.  Basically it is this: After creating a crisis by cancelling DACA and exposing a million or more to deportation Trump sprung the trap.  He paired  a doubling of the number of "dreamers' he would free from the threat of deportation with $25 billion for The Wall and greatly reduced legal immigration - especially from "sh*thole" countries.
The gamble is that Democrats have to eat that price to neutralize white working class support for the Trumpadores.

To me the logic on The Wall is "it's only money" for this job-creating boondoggle.  The cut in legal migration is a hard pill - but not one that white working class workers in the main care about; and racial, etc. resentment make it appealing to many.

For Republicans the choices are actually pretty tough since so many have campaigned on no "amnesty", cut off the spigot, build the wall, etc.

If Democrats call Trump's bluff how does that play out?  Is the Dumpster really going to deport 1.5 million  +/- ?

Tough choices. - gwc

Wednesday, January 31, 2018

Benjamin Wittes - the Nunes Memo scandal

It is an unnerving moment in our history.  And it is going to get worse before it gets better.  Contrary to Ross Douthat's delusion that the SOTU provided a glimpse of a successful presidency - this is how democracy dies. - gwc

Rep. Joseph Kennedy III delivers Democratic response to Trump SOTU

Well done.

Monday, January 29, 2018

Big Lies, Law Enforcement, and the Defense of Rod Rosenstein - Lawfare

Big Lies, Law Enforcement, and the Defense of Rod Rosenstein - Lawfare
by Benjamin Wittes

The defense of democratic institutions, norms, values and culture does not always involve standing up for people who have acted heroically. Stories feel better, of course, when it does—when honor goes to those to whom people rally because they have behaved admirably; when the music swells in our minds and it all feels like a screenplay. But democracies don’t function like neatly-ending screenplays. The characters on whom democracies depend may perform erratically; citizens may not fully understand their conduct or motives; people may not trust them.
I have not held back from criticizing Deputy Attorney General Rod Rosenstein over the past few months. I  for his role in enabling President Trump’s firing of James Comey as FBI director. I  that he should resign in response to Trump’s attacks on the integrity of the Justice Department—and I questioned his honor when he didn’t respond loudly and clearly to the president’s attacks on federal law enforcement. More recently, I  his decision to throw two FBI employees to the wolves by allowing the public release of their text messages during a pending investigation by the Justice Department’s inspector general. Jack Goldsmith has asked questions of his own, such as  from the Mueller investigation when his own involvement in Comey’s firing would seem to require it. Rosenstein’s behavior, to put it simply, has not inspired my admiration.
And yet: The defense of Rosenstein represents an imperative for everyone who is concerned about the Trump administration’s predations against the independence of law enforcement.
There will come a time to litigate the question of Rosenstein’s handling of the many bizarre questions he confronted in his role as deputy attorney general. Today is not that day. Today is a day to understand that apolitical law enforcement is stronger with him than without him, and that it would suffer a genuine blow if the president and the House Intelligence Committee chairman can lie the deputy attorney general out of government.***