Thursday, May 31, 2012

Senate committee rejects Christie N.J. Supreme Court nominee Bruce Harris |

Christopher Christie is reaping the whirlwind. The Governor who thrives on confrontation has met his match in willfulness on the New Jersey Senate Judiciary Committee.  The Democratic majority has rejected a second Supreme Court nominee.  Christie has vowed to remake the New Jersey high court.  He began by refusing to submit for tenure a highly experienced Supreme Court Justice - John Wallace on overtly ideological grounds.  A moderate Democrat and the Court's only African American, Wallace had tenure as a judge of the Superior Court but gave it up when he was confirmed for a seven year term on the Supreme Court.  A storm of bar criticism followed.  
Nominee Bruce Harris - a transactional lawyer, Yale Law grad, Black and gay,  announced that if confirmed he would recuse on the issue of gay marriage - which her personally supports.  That was a fatal error.  Democratic leader Ray Lesniak and others focused on that as marking Harris as a man who followed the orders of Christopher Christie - who had vetoed a gay marriage bill.
It is a whole new ball game as the New Jersey Supreme Court - which long functioned within a narrow range - RINOS and liberal Dems - is now the ground of overt ideological and partisan combat. - GWC
Senate committee rejects Christie N.J. Supreme Court nominee Bruce Harris |
 "Dealing Gov. Chris Christie his second bitter defeat over a high-ranking judicial appointment, the Senate Judiciary Committee today rejected the nomination of Mayor Bruce Harris of Chatham Borough to the state Supreme Court.
The Democrat-controlled committee voted 7 to 6 to turn away the 61-year-old Harris, the first openly gay and third African-American to be nominated to the state's highest court. State Sen. Brian Stack (D-Hudson), an ally of the Republican governor, was the only Democrat to vote in support of the nomination.
Christie's office declined to issue an immediate comment.

While Democrats hammered away at Harris for his lack of courtroom experience and his stated intention to recuse himself on same-sex marriage issues, Republicans fiercely came to his aid. They said his work as a finance attorney was as complex as any cases Supreme Court justices handle, and they praised him as a man who understands the dignity and honor the position requires."

'via Blog this'

Wednesday, May 30, 2012

Justice Stevens backs Obama critique of Citizens United decision

Speaking at the Clinton School of Public Service in Arkansas retired Associate Justice John Paul Stevens has strongly backed President Obama's State of the Union Address critique of the Supreme Court's decision in Citizens United v. Federal Election Commission.  And, he suggests, the court may move to narrow the impact of the ruling:

On January  27,  2010, in his State of the Union address, President Obama declared: 

"with all due deference  to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests - including foreign corporations- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."! 
In that succinct comment, the former professor of constitutional law at the University of Chicago Law School made three important and accurate observations about the Supreme Court majority's opinion in Citizens United v. Federal Election Commission.
First, it did reverse a century of law; second, it did authorize unlimited election-related expenditures by America's most powerful interests; and, third, the logic of the opinion extends to money spent by foreign entities.
The full text is HERE 

Justice Department Clears Its Own Lawyers Of Intentional Misconduct In Stevens Prosecution « JONATHAN TURLEY

Justice Department Clears Its Own Lawyers Of Intentional Misconduct In Stevens Prosecution « JONATHAN TURLEY: "The U.S. Justice Department again showed how its protects its own in scandals involving government lawyers. The DOJ has long been notorious in refusing to seriously punish its own lawyers for wrongdoing while pushing the legal envelope on criminal charges against others...The DOJ is particularly keen in finding intentional violations or substitute for intent in federal rules — bending laws to the breaking point to secure indictments. However, when its attorneys are accused of facilitating torture or lying to the court or withholding evidence, the general response is a long investigation and then a slap on the wrist. This week is no exception. Waiting until late Thursday to inform Congress to guarantee a low media coverage, the DOJ announced that it had found no intentional violations by its attorneys in the failed prosecution of U.S. Senator Ted Stevens — despite the contrary finding made by an independent investigation. "

'via Blog this'

Japan as role model - Krugman

Not a particularly good one - but a lot better than us.  Somehow the pro-growth anti-tax Republicans who ruled from 2000 to 2008 drove a lot of people from the job market.  We are dealing with the consequences.  Their power to say no in Congress keeps things bad.  The graph devised by Paul Krugman isolates prime-working years men - because it keeps things simple. - GWC

James Fallows - Ask Dr. Popkin: On the Bain Imbroglio

Politics - James Fallows - Ask Dr. Popkin: On the Bain Imbroglio - The Atlantic:
Previously in the "Ask Dr. Popkin" series, see this entry with links to previous rounds. The big idea here is that political scientist Samuel Popkin, of UCSD and the recent book The Candidate, is applying his studies of how presidents run for re-election to this year's race.

"So, Dr. Popkin, tell us what 'the Bain question' shows about the approach each campaign is taking to this campaign. Has Barack Obama been shrewd, or foolish and (gasp) 'divisive,' in saying that Mitt Romney's record at Bain Capital is a minus rather than a plus in his suitability to the economic problems of 2012. Is the Romney campaign doing the right thing in basing its appeal on his record as a 'job-creator,' in this time of chronic unemployment?"

'via Blog this'

Tuesday, May 29, 2012

Madoff Case Is Paying Off for Trustee ($850 an Hour) -

A reasonable fee?
Madoff Case Is Paying Off for Trustee ($850 an Hour) -

Irving Picard's efforts to recover funds for the victims of Bernard Madoff's giant Ponzi scheme have generated $554 million in legal and other fees.
Irving H. Picard, the court-appointed trustee seeking to recover funds for the victims of Bernard L. Madoff’s multibillion-dollar Ponzi scheme, has been described as a modern-day Robin Hood. For nearly four years, he has been working to pay back those who were swindled by Mr. Madoff, some who lost their entire life savings.
Yet a look at recent court filings shows Mr. Picard has had much more success collecting money for himself and a dozen law firms and consultants than any victim of Mr. Madoff’s crime.
So far, Mr. Picard’s efforts have created a whopping $554 million in legal and other fees. How much have Mr. Madoff’s victims actually received from all of the cases and motions he’s made? Only $330 million. And how much does Mr. Picard estimate the fee spigot will pour out by 2014? A mere $1 billion.
At $850 an hour, Mr. Picard and his law firm, Baker & Hostetler, are starting to look more like the princes of the Full Employment Act for Lawyers than storybook heroes.
'via Blog this'

Sunday, May 27, 2012

Williams & Connnolly denounce light punishment of DOJ Lawyers

The 40 and 15 day suspensions imposed by the Department of Justice on the lawyers who withheld exculpatory evidence appears to be a bad joke.  That's the view of Brendan Sullivan and his colleagues at Williams & Connolly - defense counsel for the late Alaska Senator Ted Stevens who was denied a fiar trial.  Stevens died in a plane crash shortly after his conviction.  The full statement is HERE,

'via Blog this'

Friday, May 25, 2012

Obama v. Roberts - 2005 : James Fallows - the Atlantic

C.J. John Roberts
As the Supreme Court's decisions on "Obamacare" near, James Fallows looks back to the time of Chief Justice John Roberts confirmation.  The nominee famously (I thought disingenuously) spoke of "humility" and just "calling balls and strikes" - applying rules made by others.  Barack Obama - then a little known freshman Senator - joined twenty one other Democrats who voted to deny confirmation.  His words were prescient: 
"The problem I that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court... what matters on the Supreme Court is those 5% of cases that are truly difficult.

In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.... In those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

I talked to Judge Roberts about this. Judge Roberts...did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.

I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.
Obama has already been proven right.  I fear the Court's decision, and hoe that - against the odds - John Roberts has learned something of humility.

Thursday, May 24, 2012

Mitt Romney and The Mormon Constitution

When Mitt Romney said to applause at a campaign stop that he thought the U.S. "Constitution is certainly brilliant and probably inspired", I was disgusted.  I thought it a dog whistle signal to the Tea Party - not really his opinion, not the opinion of a Harvard Law School grad.  Wrong.  This sort of thing is part of the Mormon Constitution, as Gary Wills calls it at the New York Review blog.  A brilliant Mormon student of Wills's some years ago expressed the same view - describing divine inspiration of the Declaration of Independence as a Mormon position.  Indeed Romney's view can be found in the (pre-Civil War) LDS scripture  Doctrine & Covenants:
And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood (D&C 101:80).
Perhaps the divine signal was weak when the inspired founders drafted the fugitive slave clause, or awarded white men an extra 3/5 of a vote for every slave owned.

Wednesday, May 23, 2012

Louisiana - prison capital of the world

The hidden engine behind the state's well-oiled prison machine is cold, hard cash. A majority of Louisiana inmates are housed in for-profit facilities, which must be supplied with a constant influx of human beings or a $182 million industry will go bankrupt....

One of the legacies of slavery is racism - of which Louisiana has plenty.  But less recognized is that harsh punishment is another.  The New Orleans Times Picayune tells the story:
by Cindy Chang - The Times Picayune
Louisiana is the world's prison capital. The state imprisons more of its people, per head, than any of its U.S. counterparts. First among Americans means first in the world. Louisiana's incarceration rate is nearly triple Iran's, seven times China's and 10 times Germany's.
Richland Parish Detention Center
SCOTT THRELKELD / THE TIMES-PICAYUNE Inmates return to their dormitory from the cafeteria at Richland Parish Detention Center in September.

  Prison overcrowding has become a thing of the past, even as the inmate population multiplies rapidly. Louisiana Incarcerated: state is No. 1 in prisoners gallery (19 photos)

Tuesday, May 22, 2012

Cory Booker = a surrogate for Cory Booker

For thirty years after graduating from Rutgers-Newark I practiced law on the outskirts of the City of Newark.  So I was a close but un-involved observer of its politics.  I never joined in the denunciation of Mayor Sharpe James [who - in my opinion - was convicted of a offense that was scarcely a crime.  Basically he tipped off a girlfriend who got a low but lawful price on a piece of property.]  And I have never joined in the praise of James's successor - the self-annointed superstar Cory Booker.
I have seen it before - the phenom who sees a president in the mirror (former  Essex County Executive Peter Shapiro and former Senator Bob Torricelli come to mind) and is taken down by the sin that felled Lucifer.  Talking Points Memo Publisher and founder Josh Marshall has Booker's number:

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Monday, May 21, 2012

Notre Dame, Bishops file suit against contraception coverage mandate

The University of Notre Dame and a host of Catholic universities and dioceses have filed suit to declare unconstitutional the federal mandate that employers who provide health insurance include contraceptive and other reproductive services to employees without deductible.  Church-affiliated organizations - such as hospital and universities - may decline the coverage, in which case their insurers must provide it at their own expense.  Drafted by Jones Day (attorneys pro bono) and reportedly filed today in the federal court for the Northern District of Indiana the complaint in University of Notre Dame v. Sebelius begins:
This lawsuit is about one of America’s most cherished freedoms: the freedom to
practice one’s religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are, and will continue to be, freely available in the United States, and nothing prevents the Government itself from making them more widely available. But the right to such services does not authorize the Government to force the University of Notre Dame (“Notre Dame”) to violate its own conscience by making it provide, pay for, and/or facilitate those services to others, contrary to its sincerely held religious beliefs. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act, protects religious entities from such overbearing and oppressive governmental action. Notre Dame therefore seeks relief in this Court to protect this most fundamental of American rights.
Catholic University of America President John Garvey explains "Religious institutions are not seeking to control what their employees buy, use, or do in private; they are trying to avoid being conscripted by the government into acting in a way that would be inconsistent with their character, mission, and values.".
The key word here is "facilitate".  The compromise offered by defendant Secretary of Health Kathleen Sebelius relieves the Church-related organizations from the burden of payment and provision, shifting that cost to insurers.  The complaint concedes the right of people to abortifacient drugs like RU 486, to sterilization, and contraception.  Its centerpiece is the "facilitation" argument.  Complicity in evil is the core argument.  Informing students, employees, and patients that contraceptive, sterilization or abortion-inducing drugs are available without cost through the insurer, it is alleged, constitute a form of speech and conduct which compels Notre Dame and other Catholic organizations to violate their conscience.

The courts will have to decide if provision of such widely employed health services is a general requirement justified by the federal power to regulate commerce of if seen as compelled conduct or speech is sufficiently narrowly drawn to avoid unduly burdening the Catholic Church's right to preach and otherwise adhere to its prohibitions of artificial contraception, including drugs or surgery which prevent conception.
In Employment Division v. Smith Justice Antonin Scalia, upholding a discharge for cause (use of mescaline in a religious ritual),  has explained that "[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices".  A key argument will be whether religious employers' provision of such limited health insurance is a "practice" which may be regulated or a choice which must be accommodated and respected.  For this the courts will have to balance the interests of beneficiaries who need or elect such care against those of religious employers who object to such methods.

Sunday, May 20, 2012

Taking on the F Word - Joshua Green - Boston Globe

Time to take on the F word - filibuster.  Josh Green explains in the Boston Globe:

 Let’s take only the Obama presidency. Had the filibuster not applied, the United States would have a market-based system to control carbon emissions, which would limit the damage from global warming, vitalize the clean technology sector, and challenge other large polluters like China and India to do the same. The new health care law would have a public option. Children of undocumented immigrants who served two years in the military or went to college could become US citizens. Women paid less than their male colleagues because of their gender would have broader legal recourse against their employers. Billionaires would not be able to manipulate the political system from behind a veil of anonymity.

h/t James Fallows - the Atlantic

Cory Booker - Surrogate from Hell

"“Enough is enough,” Cory Booker said. “Stop attacking private equity. Stop attacking Jeremiah Wright.”
on Meet the Press, May 20, 2012
As Steve Kornacki writes in Salon, Booker is the Surrogate from Hell. These `balanced' remarks are a stab in Obama's back. Newark Mayor  Cory Booker, self-annointed superstar skillfully signaled to the tycoons that there'll be no economic populism on his part. Kornacki elaborates:
"He added: “I have to just say from a very personal level, I’m not about to sit here and indict private equity. To me, it’s just we’re getting to a ridiculous point in America. Especially that I know I live in a state where pension funds, unions and other people invest in companies like Bain Capital. If you look at the totality of Bain Capital’s record, they’ve done a lot to support businesses, to grow businesses. And this, to me — I’m very uncomfortable with.”

Playing up Romney’s Bain record is, of course, central to Obama’s general election plan. Romney is running as a business-savvy “job creator” and relying on the public’s tendency to associate private sector success with economic competence. There is no overstating how vital it is for Obama and his campaign to break that link, and to establish that Romney’s real expertise is in making investors rich – not adding jobs and improving the quality of life for middle class workers.

In belittling this strategy, Booker isn’t just breaking with Obama, he’s breaking with just about everyone who’s ever run against Romney – including Ted Kennedy, who used criticisms of Bain’s treatment of workers to pull away from Romney in their 1994 Senate race. Essentially, Kennedy created the blueprint that Obama is now using. Booker is also providing Republicans with a dream talking point: A top Obama surrogate not only disapproves of Obama’s use of Bain, he finds it nauseating!"

Saturday, May 19, 2012

Chen Guangcheng arrives in New York

Mr. Chen thanked the Chinese government for “dealing with the situation with restraint and calm.”
Chen Guangchengwith Prof. Jerome Cohen
Chen Guangcheng, the blind Chinese activist, arrived in New York today.  His cause has long been championed by NYU Law Professor Jerome Cohen, who dubbed him the "barefoot lawyer", though he has no legal training.  Until now, when, I expect, Prof. Cohen and NYU will try to solve that problem - and find a means for Chen and his wife to sustain themselves here.
Brian Lehrer interviews Prof. Cohen about Chen on WNYC HERE

Thursday, May 17, 2012

Celebrex Class action vs. Pfizr may proceed

"A federal judge has refused to dismiss a class-action suit accusing Pfizer Inc. of securities fraud for failing to disclose relevant data from a study it conducted about its arthritis drug Celebrex.
U.S. District Judge Anne Thompson held Monday that a 2001 article in The Washington Post — revealing the alleged concealment of the study data — "may have raised the possibility that Defendants acted with scienter, thus prompting a reasonable person to begin investigating," but did not "establish a strong inference that Defendants acted with the requisite intent."
Applying a new standard for the Third Circuit, Thompson held that the statute of limitations in securities-fraud cases begins to run "when a reasonably diligent plaintiff should have discovered facts permitting it to successfully plead a cause of action under the … Securities Exchange Act."
In Alaska Electrical Pension Fund v. Pharmacia Corp., 03-cv-1519, the plaintiffs claim that Pfizer and subsidiary Pharmacia Corp. fraudulently withheld some results of a long-term clinical study of Celebrex's gastrointestinal side effects. Pharmacia allegedly reported only the first six months' worth of results in an effort to make the drug appear safer than it truly was and caused an article to be published in the Journal of the American Medical Association."
Source: New Jersey Law Journal

Wednesday, May 16, 2012

50 hours pro bono work a bar admission requirement -Chief Judge Jonathan Lippman's Law Day 2012 Remarks

Below is the heart of Chief Judge Jonathan Lippman's announcement that mandatory pro bono work will be a condition of admission to the New York bar.  GWC
Chief Judge Jonathan Lippman's Law Day 2012 Remarks:
"If pro bono is a core value of our profession, and it is -- and if we aspire for all practicing attorneys to devote a meaningful portion of their time to public service, and they should -- these ideals ought to be instilled from the start, when one first aspires to be a member of the profession. The hands-on experience of helping others by using our skills as lawyers could not be more of a pre-requisite to meaningful membership in the bar of our state. So today, on Law Day, 2012, we turn over a new page in the bar admission process in New York -- by requiring each and every applicant for admission to contribute 50 hours of participation in law-related and uncompensated pro bono service before they can practice in New York State."

'via Blog this'

Tuesday, May 15, 2012

ABA 20/20 Ethics Commission Files Reports, Resolutions

The ABA Commission on Ethics 20/20 on May 7 filed final versions of its resolutions and reports with the ABA House of Delegates which will vote on the resolutions at the Annual Meeting this August.
The summary and report is HERE 

The resolutions and accompanying reports can be found at the following links:
Technology and Confidentiality (proposals affecting Model Rules 1.0, 1.1, 1.4, 1.6, and 4.4)
Technology and Client Development (proposals affecting Model Rules 1.18, 7.1, 7.2, 7.3, and 5.5)
Admission by Motion (proposals affecting the Model Rule on Admission by Motion)
Outsourcing (proposals affecting Model Rules 1.1, 5.3, and 5.5)
Practice Pending Admission (proposal to create a new Model Rule and a proposal affecting Model Rule 5.5)
Conflicts Detection (proposal affecting Model Rules 1.6 and 1.17)

h/t Andrew Perlman/Legal Ethics Forum

Causes of the national deficit

Monday, May 14, 2012

Job creation - the Obama years

There are three big facts: 1) the Bush-era financial collapse cost millions of jobs.  2) We are slowly recovering, with a recent dip where we expected acceleration. 3) Underemployment and under-utilization of hte labor force remains a serious problem. See Chad Stone on the April jobs report.

`New York Pro bono plan deeply flawed'

Missouri Law Professor Ben Trachtenberg argues in `Rethinking Pro Bono' - an OP-Ed essay in today's Times that Chief Judge Lippman's plan to compel 50 hours of pro bono work as a condition of admission to the bar is both admirable and deeply flawed. He writes:
Mandatory pro bono work for lawyers is a good idea. But Judge Lippman’s plan is deeply flawed, as it affects only aspiring lawyers who have not yet gained admission to the bar. As a result, the beneficiaries of Judge Lippman’s largess will be served by people unlicensed to practice law — who by definition have no real practice experience. (Though internships and law school clinics are useful training grounds for future lawyers, they are no substitute for the rigors of licensed practice.)

The Lippman plan hurts these budding lawyers most of all. Recent law school graduates face a growing employment crisis: the Law School Transparency Data Clearinghouse lists 67 schools (out of the 185 that were scored) with full-time legal employment rates below 55 percent. At the same time, law school tuition and student debt have skyrocketed. The average 2011 law graduate from Syracuse owes $132,993, not including any debt incurred for undergraduate education. At Pace, the figure is $139,007; at New York Law School, $146,230.

Farrell: Judt rightly denounced Hayek's Road to Serfdom

Right wing  ideology today rests on an article of faith:  social welfare policies share a common evil with fascism and communism: they lead to dependence on the state and an inevitable slide to serfdom.  The key scripture that gives this assertion of belief intellectual colorability is Friedrich von Hayek's Road to Serfdom.  There he says things like 
"What I have argued in this book, and what the British experience convinces me even more to be true, is that the unforeseen but inevitable consequences of socialist planning create a state of affairs in which, if the policy is to be pursued, totalitarian forces will get the upper hand." 
This sort of fantastic thinking underlies the attacks on President Obama as a socialist and the "nanny state" slur on everything from social security to national health care and public education.  Tony Judt deplored Hayek in terms some have argued was unfair.  Henry Farrell, at Crooked Timber, has taken on that allegation of unfairness and dismantled it.

NJ Law Journal Editorial: Contraception Conscience Exception Unwarranted

The `Blunt Amendment' would permit any employer to refuse on grounds of conscience the federal mandate that health insurers offer contraceptive care without deductibles.  The New Jersey Law Journal Editorial Board says that the measure goes far beyond what is needed to reasonably accommodate those whose religious doctrine proscribes use of artificial contraception.  The measure was rightly rejected by the Senate.  General laws even-handedly applied may prescribe conduct inconsistent even with religious doctrine. - GWC

copyright American Lawyer Media - New Jersey Law Journal, May 7, 2012
Every Man a King

On March 1, the U.S. Senate voted to table the Respect for Rights of Conscience Act, S-1467. The measure languished until the storm of controversy provoked by the announcement that contraceptive care without deductibles must be offered under the Affordable Care Act by all employers, except churches who object.
Many objected to the narrow definition that compelled Catholic-led hospitals and universities to offer birth-control coverage, including all approved contraceptives, as recommended by the Institute of Medicine and the Food & Drug Administration. The Obama administration quickly retreated, saying that hospitals and other religiously affiliated institutions need not pay for the benefits if their leaders' principles would not permit it. In such cases, beneficiaries would still be entitled to the benefit: but it would be provided by the insurer at no cost — something the insurers reportedly welcome because contraception is cheaper than pregnancy.
The Catholic Health Association welcomed the change but the Catholic bishops were not mollified. They threw their support behind S-1467, saying "The promised 'accommodation' — even at its best — would still force our institutions to violate their beliefs. There's no exemption for objecting insurers, secular employers, for-profit religious employers, or individuals." The bill provides that the Affordable Care Act shall not "be construed to require an individual or institutional health care provider, or authorize a health plan to require a provider, to provide, participate in, or refer for a specific item or service contrary to the provider's religious beliefs or moral convictions."
Such an accommodation cuts too wide a swath. The consciences and health needs of patients, students and employers are also entitled to respect. The administration's compromise respects both sides — the institutions which provide health benefits and the beneficiaries themselves — many of whom want or need to use contraceptives and other forms of artificial birth control, including condoms which prevent the risk of transmitting viral diseases such as AIDS.
The proposal to defer to the "moral convictions" of employers and health care providers is an invitation to disorder, to a world in which each is his or her own sovereign — free to demand an exemption based on "moral conviction." Coverage for vaccines, abortions, contraception, blood transfusions and other services would become a patchwork, based on the unfettered pleas by employers, educators, physicians and others that they harbored a "moral conviction" against it.
The Supreme Court has provided the doctrinal basis for rejecting such a broad accommodation to individual conscience. The support comes from Justice Antonin Scalia in Employment Division v. Smith, 494 U.S. 872 (1990). Writing for the court, Scalia explained that an employee fired for ingesting peyote in a Native American religious ritual had no claim for unemployment benefits. The court held that facially neutral laws of general applicability that burden the free exercise of religion require no special justification to satisfy free exercise scrutiny. InReynolds v. United States, 98 U.S. 145 (1879), where the court rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice, Scalia observed that the court had said:
"Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. ... Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
The Respect for Rights of Conscience Act contains the same defect. In its interpretation of the Affordable Care Act, the government has reasonably concluded that making contraceptive and other birth control care readily available serves the public health and welfare. The accommodations offered are an appropriate balance of individual conscience and public health. S-1467 goes too far and the Senate was right to reject it. We hope they remain steadfast in that respect.

Thursday, May 10, 2012

USDOJ: Statement of Attorney General Eric Holder on the Passing of Former U.S. Attorney General Nicholas DeBelleville Katzenbach

USDOJ: Statement of Attorney General Eric Holder on the Passing of Former U.S. Attorney General Nicholas DeBelleville Katzenbach:

“Today, we mourn the loss of Nicholas Katzenbach, one of our Nation's great champions of civil rights and equal justice.  Throughout a life that spanned 90 years, he served our country in many ways – as an attorney, activist, Presidential Advisor, U.S. Attorney General and Deputy Attorney General, and U.S. Army Officer.  During WWII, Second Lieutenant Katzenbach battled oppression overseas – and survived more than a year in a German prison camp – before returning home to fight for the cause of equal opportunity.  Throughout one of the most challenging and consequential eras in American history, his extraordinary talents – and dedicated leadership of the Department of Justice – helped to guide our Nation forward from the dark days of segregation and to secure the successful passage of the landmark Civil Rights and Voting Rights Acts .  
I am especially grateful for his work to ensure a peaceful end to the legendary “Stand in the Schoolhouse Door,” when – on June 11, 1963 – Deputy Attorney General Katzenbach faced down Governor George Wallace and personally assisted two African-American students, James Hood and Vivian Malone – a bright young woman who would later become my sister-in-law – in successfully integrating the University of Alabama.

“As we remember and honor his many achievements and contributions, our thoughts and prayers are with the Katzenbach family.  Although Nick Katzenbach will be sorely missed, there is much to celebrate in the life he lived, in the example he set, and in the inspiration he will continue to provide – for me, for my colleagues across the Department of Justice, and for the Nation he was so proud to serve.”

'via Blog this'

Louis Pollak, federal judge, dies at 89

Louis Pollak, a federal judge, has died. One of the great lawyers of the civil rights movement, Judge Louis Pollak has died.  - GWC

Louis Pollak, federal judge, dies at 89: Philadelphia Inquirer
"U.S. District Court Judge Louis Pollak, a former dean of both the Yale and the University of Pennsylvania law schools and a seminal figure in the litigation emerging from the early civil rights movement, passed away Tuesday at his home in West Mount Airy after a long illness.
He was 89 years old.
Pollak, who began his legal career as a clerk to U.S. Supreme Court Justice Wiley Rutledge, played a critical role in the legal battles over racial segregation. He forged a close friendship with former U.S. Transportation Secretary William Coleman while the two served as Supreme Court clerks from 1949 to 1951, and then later when they went to work at the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison.
There, they practiced commercial law during the day, but spent evenings in Harlem, hashing out legal strategies at the offices of the NAACP Legal Defense Fund. The two assisted then civil rights lawyer Thurgood Marshall in writing the briefs in the Brown vs. Board of Education school desegregation case, and worked late into the night helping Marshall prepare for oral arguments before the Supreme Court. Marshall would later go on to serve on the Supreme Court."

'via Blog this'

Wednesday, May 9, 2012

James Fallows on Obama's Gay Marriage Announcement - The Atlantic

My sentiments, exactly.  So nice to have James Fallows thinking and writing for me.  Makes it so much easier for me. - GWC
James Fallows - Authors - The Atlantic:
"... I am surprisingly moved by Barack Obama's discussion just now of his "evolved" position on same-sex marriage. I agree with Ta-Nehisi Coates's immediate reaction: that this was a particularly notable, humane, and leader-like stand for him to take on the day after North Carolina's landslide vote for Amendment One and against same-sex marriage.
This is a field where I understand the concept of "evolution." When I was a school kid, in the small-town America of the 1950s and 1960s, I had many gay friends -- but of course didn't know that, because it was undiscussable at the time. I am painfully embarrassed at thinking of the commonplace fag/queer jokes and schoolyard taunts of that time, but of course not as pained as my friends who had to laugh along with them.
It was not until I was in college that I was aware of having gay friends -- and over the years, as my wife and I have celebrated their marriages (where that was legal) and their non-married partnerships (where it was not), I've come to understand that it is pointless, cruel, unfair, and wrong to deny them the satisfactions, and responsibilities, of committed married life. And as for the idea that same-sex marriage is a "threat" to the stability of marriage as a whole: Come on! I defy anyone to demonstrate that it cracks the top 100 list of forces eroding the institution of marriage. "

Our Journey Towards Excellence

Our Journey Towards Excellence: "Malcolm Shabbazz Mosque & Focolare Movement (New York)

Sunday, May 20, 2012
Commemoration and celebration of the 15th anniversary of the unique and timely “pact” of Chiara Lubich and W. D. Mohammed.
“Our Journey Towards the Excellence of the Human Family”

On May 18, 1997, history was made at the Historic Malcolm Shabazz Mosque in Harlem, NY.
On that day, two blessed leaders, Imam W. D. Mohammed (religious and spiritual leader of the largest constituency of Muslims in America), and Chiara Lubich (president and spiritual leader of the Focolare Movement worldwide), held a joint meeting at the Mosque to formalize a “pact” illustrating their commitment to work together to promote unity. This collaboration was not only between their own communities, but also with people of faith from all religions, based on common principles and values."

We will commemorate and celebrate the 15th anniversary of this unique and timely “pact” on Sunday, May 20, 2012. Please join us in unity and fellowship at the Historic Malcolm Shabazz Mosque, 102 West 116th Street, NY, NY 10026, from 1 pm to 4 pm. Admission is free. Lunch will be available (donation only $10.00) between noon and 1 pm. Please RSVP.

All are welcome to attend!

For additional information, call:
1-212-662-2200 (Mosque) or 1-718-828-1969 / 1-212-388-9498 (Focolare)

*Chiara Lubich (1920-2008) was the founder and spiritual leader of the Focolare, a worldwide ecclesial movement born in the Catholic Church and active in the US for over 50 years. With its spirituality based on unity, the Focolare fosters universal brotherhood and it includes members and friends of different religious and non-religious convictions, ages and backgrounds. During Chiara Lubich’s life four popes spoke striking words about her and her spiritual family. Chiara Lubich is the author of over 50 books in 21 languages and the recipient of 12 honorary doctorate degrees. Read more on the Focolare website:

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Why endorsing gay marriage is terrible politics for Obama - but he did it anyway! | TPM2012

Obama endorses gay marriage! - the video
Obama's gay marriage dilemma | TPM2012:
For those who wonder why President Obama won’t fully embrace same-sex marriage, despite relentless pressure from within his own party to do so, Tuesday night’s landslide passage of a same-sex marriage ban in North Carolina offered a reminder.
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Government job losses inflate unemployment rate

This is the Chris Christie factor: voters feel pinched, they elect "cost cutters" who make it worse.

ABA Ethics 20/20 report

The ABA Report of its Ethics 2020 commission has been released.

ABA Commission on Ethics 20/20 
Introduction and Overview 

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Tuesday, May 8, 2012

The Last RINO - By Jacob Heilbrunn | Foreign Policy

The Last RINO - By Jacob Heilbrunn | Foreign Policy: "This year, a new book by John T. Shaw appeared about Sen. Richard G. Lugar, who tonight lost his primary to Tea Party candidate and Indiana state treasurer Richard Mourdock. Like Lugar, its tone is steady, reassuring, and unexciting. The tome is called Statesman of the Senate: Crafting Foreign Policy from Capitol Hill. It has received blurbs from everyone from former senior Clinton administration official and Brookings Institution President Strobe Talbott -- "a trenchant study of statesmanship as practiced from the legislative branch of our government" -- to former Sen. Sam Nunn -- "A close-up look at the dedication, effectiveness, and outstanding public service of Senator Dick Lugar.""

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Sen. Richard Lugar's two primary election statements » Evansville Courier & Press

Richard Lugar went down to defeat at the hands of a Tea party candidate.  Lugar continues to affirm that he is a Republican and wants richard Mourdock to be elected, but that is followed by a devastating attack on the extreme  partisanship that characterizes the Republican party today. - GWC
TEXT: Sen. Richard Lugar's two primary election statements » Evansville Courier & Press:

From time to time during the last two years I heard from well-meaning individuals who suggested that I ought to consider running as an independent. My response was always the same: I am a Republican now and always have been. I have no desire to run as anything else. All my life, I have believed in the Republican principles of small government, low taxes, a strong national defense, free enterprise, and trade expansion. According to Congressional Quarterly vote studies, I supported President Reagan more often than any other Senator. I want to see a Republican elected President, and I want to see a Republican majority in the Congress. I hope my opponent wins in November to help give my friend Mitch McConnell a majority.If Mr. Mourdock is elected, I want him to be a good Senator. But that will require him to revise his stated goal of bringing more partisanship to Washington. He and I share many positions, but his embrace of an unrelenting partisan mindset is irreconcilable with my philosophy of governance and my experience of what brings results for Hoosiers in the Senate. In effect, what he has promised in this campaign is reflexive votes for a rejectionist orthodoxy and rigid opposition to the actions and proposals of the other party. His answer to the inevitable roadblocks he will encounter in Congress is merely to campaign for more Republicans who embrace the same partisan outlook. He has pledged his support to groups whose prime mission is to cleanse the Republican party of those who stray from orthodoxy as they see it.This is not conducive to problem solving and governance. And he will find that unless he modifies his approach, he will achieve little as a legislator. Worse, he will help delay solutions that are totally beyond the capacity of partisan majorities to achieve. The most consequential of these is stabilizing and reversing the Federal debt in an era when millions of baby boomers are retiring. There is little likelihood that either party will be able to impose their favored budget solutions on the other without some degree of compromise.Unfortunately, we have an increasing number of legislators in both parties who have adopted an unrelenting partisan viewpoint. This shows up in countless vote studies that find diminishing intersections between Democrat and Republican positions. Partisans at both ends of the political spectrum are dominating the political debate in our country. And partisan groups, including outside groups that spent millions against me in this race, are determined to see that this continues. They have worked to make it as difficult as possible for a legislator of either party to hold independent views or engage in constructive compromise. If that attitude prevails in American politics, our government will remain mired in the dysfunction we have witnessed during the last several years. And I believe that if this attitude expands in the Republican Party, we will be relegated to minority status. Parties don’t succeed for long if they stop appealing to voters who may disagree with them on some issues.

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RPC 1.9 bars representation without consent of former client - NJ Supreme Court

In Twenty First Century Rail v. NJ Transit the New Jersey Supreme Court has held that in analyzing a successive representation conflict under RPC 1.9 written consent of the former client is a necessity.  Absent that representation is barred:
"In this appeal, we consider whether an attorney who was retained to provide advice to a client in connection with a construction project violated RPC 1.9 by subsequently undertaking the representation of another party that was involved in the construction project whose interests were adverse to those of the former client.  Both the trial court, and the Appellate Division in its published opinion, TwentyFirst Century Rail Corp. v. N.J. Transit, 419 N.J. Super. 343 (App. Div. 2011), concluded that the RPC did not bar the attorney from undertaking the subsequent representation and therefore declined to disqualify him and his firm from the matter.  Because our analysis of the project, the relationship among the parties to the litigation, and the role played by the attorney, demonstrates that the subsequent representation was prohibited by the clear terms of RPC 1.9, we reverse the Appellate Division’s judgment.
In clear language, RPC 1.9(a) begins with a prohibition that precludes an attorney from engaging in the representation of an adverse client in the same matter unless the former client consents in writing.  RPC 1.9(a).  Therefore, if the prior and the subsequent matters are indeed the same, the representation, absent written consent of the former client, is prohibited.  In that circumstance, we need not conduct the inquiry into whether the matters are substantially related[.]"

New Lawyers in New York to Be Required to Do Some Work Free -

New Lawyers in New York to Be Required to Do Some Work Free -
by Ann Bernard  "Starting next year, New York will become the first state to require lawyers to perform unpaid work before being licensed to practice, the state’s chief judge announced on Tuesday, describing the rule as a way to help the growing number of people who cannot afford legal services."

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Monday, May 7, 2012

Al Jazeera English to close China bureau - Asia-Pacific - Al Jazeera English

Melissa Chan - Beijing bureau reporter
Al Jazeera English to close China bureau - Asia-Pacific - Al Jazeera English:

Al Jazeera English has had to close its bureau in Beijing after the Chinese authorities refused to renew its correspondent’s press credentials and visa or allow a replacement correspondent.

The channel has expressed its disappointment in the situation and said it is continuing to request a presence in China. It has even been requesting additional visas for correspondents for quite some time through the normal procedures but these have not been issued.

Melissa Chan has been Al Jazeera English’s China correspondent since 2007. Chan has filed nearly 400 reports during her five years in China. She has covered stories about the economy, domestic politics, foreign policy, the environment, social justice, labor rights and human rights.

Salah Negm, director of news at Al Jazeera English said: "We’ve been doing a first class job at covering all stories in China.Our editorial DNA includes covering all stories from all sides.We constantly cover the voice of the voiceless and sometimes that calls for tough news coverage from anywhere in world."
"We hope China appreciates the integrity of our news coverage and our journalism.  We value this journalist integrity in our coverage of all countries in the world," he said.

"We are committed to our coverage of China. Just as China news services cover the world freely we would expect that same freedom in China for any Al Jazeera journalist. Al Jazeera Media Network will continue to work with the Chinese authorities in order to reopen our Beijing bureau."
Bob Dietz of the New York-based Committee to Protect Journalists said Chan's case, the first expulsion of a journalist since 1998, "marks a real deterioration in China's media environment and sends a message that international coverage is unwanted."
The Times report is HERE

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Lessons From Cuba in AIDS Control -

Fidel Castro, discussing AIDS prevention, 1983

I suppose that some creative genius like Newt Gingrich or Ron Paul will have some explanation for why the world's greatest health care system - ours - fails grievously when compared to the socialist system in a poor country we have tried for 50 years to isolate and defeat.  I expect that when the free enterprise system comes to Cuba health care will suffer.  - GWC
A Regime’s Tight Grip - Lessons From Cuba in AIDS Control -
by Donald G. McNeil, Jr.

Cuba now has one of the world’s smallest epidemics, a mere 14,038 cases. Its infection rate is 0.1 percent, on par with Finland, Singapore and Kazakhstan. That is one-sixth the rate of the United States, one-twentieth of nearby Haiti.
The population of Cuba is only slightly larger than that of New York City. In the three decades of the In In the three decades of the global AIDS epidemic, 78,763 New Yorkers have died of AIDS. Only 2,364 Cubans have. Other elements have contributed to Cuba’s success: It has free universal basic health care; it has stunningly high rates of H.I.V. testing; it saturates its population with free condoms, concentrating on high-risk groups like prostitutes; it gives its teenagers graphic safe-sex education; it rigorously traces the sexual contacts of each person who tests positive.
By contrast, the response in the United States — which records 50,000 new infections every year — seems feeble. Millions of poor people never see a doctor. Testing is voluntary, and many patients do not return for their results. Sex education is so politicized that many schools teach nothing about protected sex; condoms are expensive, and distribution of free ones is haphazard.

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Sunday, May 6, 2012

Paul Krugman: Electing Romney Is Like Electing Paul Ryan | TPMDC

Paul Krugman: Electing Romney Is Like Electing Paul Ryan | TPMDC:
"The Princeton professor and Nobel Prize-winning economist, who is touring his new book End This Depression Now!, said Romney would be wedded to Ryan’s economic policy prescriptions which have become too entrenched on the right: Above all, massive tax cuts for the rich and draconian spending cuts on programs for the less fortunate, which Krugman argues will amount to an “upward distribution of income plan.”
“You’re never going to get people in the Republican Party accepting the idea that unemployment and food stamps insurance are expansionary,” he said. “That they are actually policies that are good for employment. They’re too wedded to the notion that the undeserving poor … are the cause of unemployment. So I think they’re basically incapable of doing what needs to be done to support this economy.”
The conservative base eagerly wants its president to implement Ryan’s vision, which House Republicans overwhelmingly reaffirmed their support for late March. Anti-tax activist Grover Norquist, arguably the most influential outside figure among modern Republicans, says Romney’s role would be to rubber-stamp Ryan’s agenda."

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Meanwhile, In The Bond Market - Krugman -

The message is that the real interest rate on US bonds is negative - that is, LESS than ZERO, one you factor inflation.  So buyers of Treasury bonds are paying the U.S. for the privilege of letting the U.S. use their money. Take that, deficit hawks! - GWC
Meanwhile, In The Bond Market -

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Torts Today: Achieving Procedural Goals Through Indirection: The Use of Ethics Doctrine to Justify Contingency Fee Caps in MDL Aggregate Settlements by Morris Ratner :: SSRN

Torts Today: Achieving Procedural Goals Through Indirection: The Use of Ethics Doctrine to Justify Contingency Fee Caps in MDL Aggregate Settlements by Morris Ratner :: SSRN:
h/t John Steele/Legal Ethics Forum
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The greatest catch - EVER Willie Mays is 81

Game 1, 1954 World Series, Giants vs. Indians, the Polo Grounds

The failure of economists in the Crisis - Paul Krugman

Paul Krugman collected another honorary doctorate in February in Lisbon.  The link below brings you to the full text of the address.  The conclusion is below.  Personally I never considered economics a profession - not like law or medicine - with a social role.  I just saw economists as hired guns or ideologues. Krugman sees it as more. - GWC
Economics in the Crisis -

The failure of economics
The best you can say about economic policy in this slump is that we have for the most part avoided a full repeat of the Great Depression. I say “for the most part” because we actually are seeing a Depression-level slump in Greece, and very bad slumps elsewhere in the European periphery. Still, the overall downturn hasn’t been a full 1930s replay. But all of that, I think, can be attributed to the financial rescue of 2008-2009 and automatic stabilizers. Deliberate policy to offset the crash in private spending has been largely absent.
And I blame economists, who were incoherent in our hour of need. Far from contributing useful guidance, many members of my profession threw up dust, fostered confusion, and actually degraded the quality of the discussion. And this mattered. The political scientist Henry Farrell has carefully studied policy responses in the crisis, and has found that the near-consensus of economists that the banks must be rescued, and the semi-consensus in favor of stimulus in the initial months (mainly because the freshwater economists were caught by surprise, and took time to mobilize) was crucial in driving initial policy. The profession’s descent into uninformed quarreling undid all that, and left us where we are today.
And this is a terrible thing for those who want to think of economics as useful. This kind of situation is what we’re here for. In normal times, when things are going pretty well, the world can function reasonably well without professional economic advice. It’s in times of crisis, when practical experience suddenly proves useless and events are beyond anyone’s normal experience, that we need professors with their models to light the path forward. And when the moment came, we failed.

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Saturday, May 5, 2012

Murdoch’s Pride Is America’s Poison - Bill Keller -

Truth-speaking is getting contagious.  First Norman Ornstein - a long-time voice of reason on the terminally fair and balanced McNeill-Lehrer Newshour on PBS - declared, let's face it - the problem is the Republican Party.  Now former Times Editor Bill Keller says it plainly: Fox News is no more fair and balanced than Rupert Murdoch is fit to run a major news organization.
Murdoch’s Pride Is America’s Poison -
by Bill Keller

First the news: Murdoch Inc. sinks deeper and deeper into crisis. His newspapers hemorrhage money. The political clout that once justified all that red ink is waning, as exposés of illicit phone-hacking, police payoffs and possible lobbying improprieties make him unwelcome company in any politician’s photo op. Murdoch’s hopes of expanding his substantial foothold in British broadcasting have been dashed by the scandals. Last Tuesday, a parliamentary committee, voting on party lines, issued a verdict that Murdoch was “not a fit person” to run a major international corporation. Meanwhile, the acid rain of criminal charges and civil lawsuits continues.
In this beleaguered family of news enterprises, Fox is the good son. It is the most reliable profit center, expected to net a billion dollars this fiscal year. It is untainted so far by the metastasizing scandals. It is a source of political influence more durable than Murdoch’s serial romances with British prime ministers. This year the Fox News Primary probably did more to nominate Mitt Romney than New Hampshire or Michigan.
And yet I would argue that — at least for Americans — Fox News is Murdoch’s most toxic legacy.

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Friday, May 4, 2012

Politicizing the `war on terror'

More on Chen Guangcheng: The Limits of Outside Power - James Fallows - International - The Atlantic

James Fallows on how the press is getting the Chen Guangcheng story wrong. - GWC
More on Chen Guangcheng: The Limits of Outside Power - James Fallows - International - The Atlantic:

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China Syndrome | Walter Russell Mead Via Meadia

China Syndrome | Via Meadia:
by Walter Russell Mead
 "No good deed goes unpunished; this must be what US Ambassador to China Gary Locke must have been thinking as a firestorm of criticism erupted over his embassy’s handling of the Chen Guangcheng case. Under great pressure, with Secretary of State Hillary Clinton and Treasury Secretary Tim Geithner arriving for high profile talks with China’s leadership, the embassy and colleagues in the State Department including Assistant Secretary of State for East Asian Affairs Kurt Campbell had negotiated a delicate deal with Chinese counterparts that Chen accepted. Negotiated with the involvement of top legal scholar Jerome Cohen, and based on a similar agreement reached in the case of another prominent dissident (Ai Weiwei), it looked like a big win for the US, a big step forward in US-China relations, and a solution to the problems of a man whose courageous struggle against injustice had won the admiration and sympathy of people around the world."
Walter Russell Mead is Henry A. Kissinger senior fellow at the Council on Foreign Relations and author ofSpecial Providence: American Foreign Policy and How It Changed the World. He blogs at The American Interest
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Thursday, May 3, 2012

The Tea Party Helps Black People Vote Properly | GOPlifer | a blog

The Tea Party Helps Black People Vote Properly | GOPlifer | a blog:
by Christopher Ladd
 "This past weekend white folk from all over America gathered to help their African-American friends.  One of the most successful offshoots of the Tea Party movement hosted their National Summit in Houston to highlight the imaginary problem of voter fraud.
In a painfully awkward bid for street cred these brave patriots call themselves “True the Vote.”  They clean up our elections by sending white people into black neighborhoods to watch over them with paternal care at the polls.
This is a remarkable time to be white in America.  For centuries we owned this joint while everybody else was just paying rent.  Only fifty years ago most of the best-paying, most secure government and factory jobs were set aside for us.  In wide swaths of the country we were the only people who could vote, serve in public office, or own a gun.  In just two generations we’ve been relegated to a sort of…ordinariness…that is driving some of our brethren positively insane."

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Indifference to aliens' lives at SCOTUS - Linda Greenhouse, NY Times

In Plane Wreck at Los Gatos, no one cared because "they were just deportees" sang Woodie Guthrie.  Linda Greenhouse - who has been to innumerable Supreme Court arguments - finds evidence of the same attitude among the nine justices of the U.S. Supreme Court. - GWC
The Lower Floor -
by Linda Greenhouse
"I found last week’s Supreme Court argument in the Arizona immigration case utterly depressing, and I’ve spent the intervening week puzzling over my reaction. It’s not simply that the federal government seems poised to lose: unlike the appeals court, the justices appear likely to find the heart of Arizona’s mean-spirited “attrition through enforcement” statute, S.B. 1070, permissible under federal law.
Poring over the argument transcript and the briefs, what finally came through as most deeply troubling was this: the failure of any participant in the argument, justice or advocate for either side, to affirm the simple humanity of Arizona’s several hundred thousand undocumented residents."

Tuesday, May 1, 2012

The Pleasures and Perils of the Passive -

The Pleasures and Perils of the Passive -
by Constance Hale
 "The word passive gets a bad rap. We throw it around to vent about friends who can’t stand up for themselves, and we combine it with aggressive to describe those who express anger indirectly rather than just blurting it out. When it comes to writing, many of us are haunted by this word. Maybe a high school teacher forbade “passive constructions.” Or we recall authorities like Strunk and White, who famously told us to “use the active voice.”
There is certainly some merit to this rule of thumb; some of the worst writing around suffers from inert verbs and the unintended use of the passive voice. Yet the passive voice remains an important arrow in the rhetorical quiver. After all, it exists for a reason"

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