Noise is not Free Speech

We’re on a collision course with technology. Free speech is being killed in order to save it.

Something is always boiling up that involves free speech. Cartoons are drawn of the “wrong” person, somebody is jailed for speaking out and gets the Nobel prize, there are plans to build a mosque in the “wrong” place. And some people picket funerals to gloat.

(photo by Burstein!, CC licensed)

All of these things are a step too far for some people. Others insist that we can’t draw any lines without sliding down a slippery slope of more and more lines until there’s no free speech left.

The dilemma doesn’t actually seem intractable to me. Try a thought experiment. You’re in a huge room with 10,000 other people. Nobody can say anything. There’s total silence except for the occasional suppressed cough. Is there any freedom of speech?

Now you’re in the same room, but anyone can speak and anyone can say anything. Everybody’s talking — shouting, really, to make themselves heard. You can’t even hear yourself speak. Is there any freedom of speech?

We’re not in the first situation anymore. When the great thinkers of the 1700s were articulating the essential freedoms, few people had the means to disseminate their ideas to begin with, so there weren’t many voices. Nor was there the technology to din at people 24/7/365. So noise was not a large concern. They worried about silencing.

Silencing was and is a crime against inalienable rights and has to be prevented.

But noise can kill a message just as dead as silence. Either way, you can’t hear it. Either way, we lose the freedom of speech. Either way, the loss is just as lethal to a free society.

Insisting that everyone, everywhere, for any purpose, has an equal right to speak hasn’t preserved freedom of speech. It’s killing it. When everybody can shout as loud as they can about whatever they want, you either can’t hear anything or the biggest voices will dominate. It’s right back to the king having the only voice. The fact that it’s not literally a monarch these days doesn’t make it all right.

Yes, I know. If speech is limited we have to — horrors! — draw some limits. Well, … we already do, and that hasn’t killed free speech. That promotes it. Unless the signal to noise ratio favors signal, there is no signal. That’s not exactly hard to figure out.

So, let’s start with the easy cases, the ones where limits have long been applied and clearly don’t lead to disaster. Free speech doesn’t confer a right to perjury, to wrong answers on exams, to yelling “fire” for nothing in crowded theaters, or to incitement to riot. Truth in advertising laws say it’s unacceptable to lie in order to extract money. None of these limits has led to thought control. It is possible to apply limits on speech without losing freedom. As a matter of fact, we’d lose freedom if they were not applied.

If some limits work, then limits work, and people can stop pitching a fit every time there’s talk of limits. The rational response is, “What are the best limits for preserving freedom of speech?”

Half the answer is contained in the question. Anything that remains murky after our best efforts to find the limits gets the benefit of the doubt and is covered by freedom of speech. That part’s not hard to figure out either.

The hard part is updating the limits for a technological age in which everybody can shout their point of view. If everybody gets veto power, nothing can be said. If there’s no way to draw the line, nothing can be heard. There has to be a better way.

There’s a common denominator to the limits that work. If everyone claimed the right to the forbidden kinds of speech, chaos would ensue. If everybody lied, incited to riot, and yelled fire in crowded theaters, life would become impossible. Those kinds of speech require double standards. Only some people can use them and only some of them time. Everybody else has to keep the system working. Double standards have no place in a democratic society, so that kind of speech not only can be but must be forbidden. It’s noise. Bad noise. (Discussed at greater length in Free Speech vs. Noise.)

So, how does that help us resolve any of the disputes? Let me give it a whirl.

• Publishing cartoons of Mohammed in a Danish newspaper explicitly to make the point that Muslims cannot dictate what is published in secular papers. This one belongs in the “Well, duh!” category. Religious people don’t have to read secular papers. This is not an in-your-face exercise. If one side can veto the other’s reading material, then in a world without double standards, secular people could object to anyone reading about God in a holy book. Everything rapidly descends into absurdity when that kind of veto power is allowed.
• Building a cultural center containing a mosque near Ground Zero. If there is to be freedom of religion, there have to be places of worship. Some areas are certainly not appropriate. For instance, in a secular government that separates church and state, it would be wrong to worship in or next to government buildings. (I’m sure protests about the Congressional Chaplain will break out shortly.) But to start limiting worship with no basis in justifiable principles ultimately means the end of freedom of religion. And, again, if one side can suppress another’s beliefs, it can go in the other direction too. That way lies madness. There’s plenty of proof all over the world.
• Pro-democracy activist in China should not be jailed for speaking out. Okay. Seriously Duh! (And that goes double for his wife!)
• And then there’s the Phelpses and their crusade against queers. Do they have a right to speak out? Of course. Do they have a right to be sure they know what God thinks? Just as much as anyone else does. Is somebody else’s funeral their only avenue to expression? No. No, no, no, no, no. They can make websites, write books, sing songs in their churches, fulminate there, parade, start radio shows. Their freedom of expression is not limited.

  What’s limited is their right to use it in a way that deprives someone else of their own rights. Political speech is very heavily protected, but you can’t use it within 200 feet of a polling station on election day. Because that would interfere with people’s right to vote. It would be a relatively minor annoyance, but it’s still illegal. If interfering with voting is enough to place a limit on free speech, how much more so interfering with the even more basic human right to bury one’s dead in peace.

When everywhere else is a venue for free expression, it’s idiotic to insist that crashing a stranger’s funeral is the only thing that will do. Of course, the Phelpses are idiotic, so that’s no surprise. The rest of us shouldn’t be as confused as they are about where the limits lie.

Crossposted to Acid Test and Corrente

THE most serious question at Sotomayor’s hearing was asked by… Franken?

Holy Hemiola, Republicans are a repetitive bunch.  Did any one of them ever have an independent thought?  The way they zeroed in on her “wise latina” word combination was like some SETI scientists looking for meaningful patterns in vast field of verbal graffitti, like none of the other billions of words Sotomayor has ever uttered made sense.  In some very no-so-subtle ways, they managed to communicate that a latina woman should show more deference to a southern white gentleman, that life experiences are strictly forbidden for Democrats but perfectly OK for Republican nominees like Concerned Alumni of Princeton Alito and “high tech lynching” Thomas, and that with 7 white men out of 9 members of the court (that’s 78% for those of you who are keeping track), this is a population that needs to be protected, the poor things.  Let me get this straight:  white males are the downtrodden of the earth, put upon and underpriveleged and that’s why we need so many of them on the court.  Women?  ehhhhh, not so much.  I would hope that women voters in Republican districts would keep this in mind when they go to the polls in 2010 but as my mom says, people have short memories.  They will forget what empty headed, arrogant, clueless, condescending jerks Jeff Sessions and Lindsay Graham were.

Franken, on the other hand, will be known for his Perry Mason moment instead of the most important question asked at the hearings.  Here’s the question:

Now, you may be wondering why Franken would be concerned with “net neutrality”.  I’m going to take a guess here that it’s for the same reason he was a founding member of Air America.  Back in 2003, corporate media controlled the horizontal and the vertical.  Well, it still does.  The propaganda might be coming from a pseudo-Democratic White House but it’s still propaganda and there are precious few sources of push back.

Air America’s flagship station was a tiny station in NYC, WLIB, with a very weak signal.  In central NJ, just 36 miles away, I could barely pick it up on my car radio.  During some of the more critical news stories of 2003-2004, I couldn’t get it at all.  There was a competing station from Indiana, of all places, that was a superbroadcaster.  The Indiana station would crank up the volume up to 11 and blast right wing talking points, overwhelming that tiny whisper from Air America.  I noticed that Indiana wouldn’t always be blasting away.  It only happened when I wanted to hear a different opinion on an important news story.

That left me with live streaming Air America from the internet.  Now, I might live right in the heart of telecommunications R&D central, not far from ATT and Lucent and all the rest.  But my internet providers are very, VERY limited.  There are days that I swear they are blocking access or slowing down the download speeds to sites I want to access.  I’m sure I’m just being paranoid but isn’t this Franken’s point?

Who owns the internet?  Is it the corporations who laid the cables or us?  Do we have a right to access it to exercise our first amendment rights or is it possible for a Supreme Court judge to say, “I said you have a right to free speech.  I didn’t say Verizon FIOS had an obligation to carry your words to the rest of the world.  If you want to be heard, buy a megaphone and try not to get arrested for disturbing the peace”

The corporations might say they own the cables but *WE* paid for them.  Everytime we made a phone call or emailed our mothers or purchased that electric raclette grill from amazon or downloaded Lady Gaga from iTunes, we pay for laying down new lines through the hefty fees added to our bills every month.  Isn’t that the excuse that these companies are always making for raising the rates?  They have to add new lines, update the technology?  Ok, we paid for that.  Did we forfeit our right of free speech when we entered into an agreement with these companies?  That is essentially the question Al Franken asks.  Sotomayor responds that it depends on the policy established by Congress.

Ahhh, back to those bastards.  So, if Congress gives away the store to ATT, FIOS, Embarq and the like, is our only recourse to vote them out of office?  And if we want to run alternative candidates, how to we make sure these candidates get a fair hearing?  The internet has the capacity to change the electoral landscape by allowing candidates to circumvent the corporate media gatekeepers.  But if you don’t have free, unfettered access, is this really possible?  Is it possible that in 2010, we will see candidates who want to primary incumbents blocked by service providers from doing so?

The problem is not a hypothetical “maybe”.  It could happen now.  The question goes to the very heart of our system of democracy.  The right to free speech, to be heard, to foment insurrection if necessary, was the first right that was granted to us in the Constitution by people who knew what it means to need to overthrow your government.  These days, we would prefer to overthrow our government at the ballot box. But if you can only make your voting decisions based on disinformation, if it is legal for corporations to promote disinformation for its own benefit and if those corporations are granted the protection of “personhood”, doesn’t this infringe on the rights of the individual to be heard and have the power of full citizenship?

We need only look to Iran for the answer to this question.  Their election was highly questionable, so highly questionable that they demanded a recount or a new election.  Instead, the government cut off their access to the internet, their ability to organize and then ruthlessly suppressed the protestors.  Could it happen here?  Hell, yes.  All we need is a bunch of hyperbolic blowhards on cable news networks terrifying people into thinking it could provoke another 9/11 and we’re there, baby.

How do we prevent that from happening?  That’s essentially what Franken is asking.  How do we exercise our free speech when someone else has our voice and can turn down the volume?  Does that old playground boast, “It’s a free country, I can say whatever I like” still have any real meaning?  Sotomayor’s answer, to me, was less than satisfying.  I think she will be deferential to the corporation’s lawyers when the issue finally makes it to the USSC.  I’ve been wrong before but let’s just call it a hunch.  It’s like her answer on abortion.  Yes, women have a right to privacy with their doctors- under certain circumstances.  Maybe I’m dense or something but if someone else is setting the “circumstances” under which you have a right to privacy, then there isn’t much privacy.  But I digress.

The more important issue is freedom of speech.  It precedes all others.  It allows you to question authority and persuade your fellow citizens.  Without it, there would be no discussion of abortion or gun rights or health care.  Or at least, no competing opinions.  And as technology has changed the way we access our information, allowing us to benefit from the internet’s advantages of speed and relational information, those of us who do not control that access will be at a severe disadvantage as citizens.  We might as well be wearing a gag.

Which is just how the monopolies like it.

Podcast of the day: Control of the media has been going on ever since there was a printing press.  Check out Melvyn Bragg In Our Time’s Seventeenth Century Print Culture.  King Henry VIII was one of the first to crack down on the press by banning the vernacular bible and forbidding women and servants from reading it.  They might get the notion that they knew what it meant.  Sounds like Lindsay Graham’s kind of guy.

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Grilled Sotomayor

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They tried, but they didn’t lay a glove on her:

Sonia Sotomayor pushed back vigorously Tuesday against Republican charges that she would bring bias and a liberal agenda to her seat as the first Hispanic woman on the Supreme Court, insisting repeatedly she would be impartial as GOP senators tried to undercut her with her own words from past speeches.

[…]

Sotomayor, 55, kept her composure — judge-like, supporters said — during the intense day of questions and answer, listening intently and scribbling notes as senators peppered her with queries, then leaning into her microphone and gesturing for emphasis as she responded. She returns for another full day of questioning on Wednesday.

“My record shows that at no point or time have I ever permitted my personal views or sympathies to influence the outcome of a case,” the appeals court judge declared during a tense exchange with Sen. Jeff Sessions of Alabama, the top Republican on the committee that is conducting this week’s confirmation hearings. He repeatedly questioned her ability to be objective as a Supreme Court justice, citing her own comments.

Sotomayor backed away from perhaps the most damaging words that had been brought up since Obama nominated her seven weeks ago — a 2001 comment suggesting that a “wise Latina” judge would usually reach better conclusions than a white man. She called the remark “a rhetorical flourish that fell flat.”

“It was bad because it left an impression that I believed that life experiences commanded a result in a case, but that’s clearly not what I do as a judge,” Sotomayor said.

She also distanced herself from the man who nominated her, after Republican Sen. Jon Kyl asked whether Sotomayor shared Obama’s view — stated when he was a senator — that in some cases, the key determinant is “what is in the judge’s heart.”

“I wouldn’t approach the issue of judging in the way the president does,” she said. “Judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law.”

Republicans sounded unconvinced by Sotomayor’s defense.

“I am very troubled that you would repeatedly over a decade or more make statements” like the one in 2001, Sessions said.

And Sen. Lindsey Graham, R-S.C., said Sotomayor’s answers Tuesday were starkly at odds with her previous comments. “That’s what we’re trying to figure out — who are we getting here?” he said.

During her first chance to answer questions publicly, Sotomayor stopped short of calling the right to abortion settled law but also said, “All precedents of the Supreme Court I consider settled law subject to” great deference but not absolute. Under repeated questioning, she said she’d have an open mind on gun rights.

She also defended her most frequently criticized ruling: a decision by a three-judge panel of the 2nd U.S. Circuit Court of Appeals last year to dismiss the claim of white firefighters in New Haven, Conn., who alleged racial discrimination after being denied promotions.

[…]

Sotomayor said the lawsuit, in which New Haven scrapped the results of a promotion test because too few minorities did well, was not about quotas or affirmative action.

“We were following precedent,” she said.

Leahy was the first to question Sotomayor on the case, and he teed up a sympathetic portrayal of her approach, saying she would have been criticized however the panel had ruled — “You’re damned if you do and damned if you don’t,” he said. Prodded by Leahy, Sotomayor said she “absolutely” would have approached the case differently in light of the new standard she said the Supreme Court laid out in its recent ruling.

[…]

Sotomayor, who hasn’t ruled on the issue during her 17 years on the federal bench, shed little light on her view, confining her answers to legal-speak that never went beyond what the high court has said on the subject. She said the right to abortion is “the Supreme Court’s settled interpretation of what the core holding is,” as affirmed in a separate 1992 ruling.

Sotomayor’s came close to saying the issue was settled law — but stopped short of that flat declaration. Under questioning by Sen. Herb Kohl, D-Wis., Sotomayor did say she considered the existence of a right to privacy — considered a key precursor of Roe — to be “settled law.”

Under questioning by Graham, she also professed ignorance of cases in which the Puerto Rican Legal Defense and Education Fund, a civil rights group she advised as a board member between 1980 and 1992, argued for taxpayer-funded abortions.

“I never reviewed those briefs,” Sotomayor told Graham.

Leahy was first to ask about the “wise Latina” comment that has sparked so much controversy.

“I want to state upfront, unequivocally and without doubt: I do not believe that any racial, ethnic or gender group has an advantage in sound judging,” Sotomayor said. “I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences.”

It’s all Kabuki anyway – the Republicans don’t have the votes to block her. They’re just posturing for the folks back home.

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Gotcha!

Bloviating Gasbag (R-Alabama)

Priceless:

Sen. Jeff Sessions (R., Ala.), seeking to discredit Judge Sonia Sotomayor’s judicial philosophy, cited her 2001 “wise Latina” speech, and contrasted the view that ethnicity and sex influence judging with that of Judge Miriam Cedarbaum, who “believes that judges must transcend their personal sympathies and prejudices.”

“So I would just say to you, I believe in Judge Cedarbaum’s formulation,” Sessions told Sotomayor.

“My friend Judge Cedarbaum is here,” Sotomayor riposted, to Sessions’ apparent surprise. “We are good friends, and I believe that we both approach judging in the same way, which is looking at the facts of each individual case and applying the law to those facts.”

Cedarbaum agreed.

“I don’t believe for a minute that there are any differences in our approach to judging, and her personal predilections have no effect on her approach to judging,” she told Washington Wire. “We’d both like to see more women on the courts,” she added.

Open mouth, insert foot.

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UPDATE:

Here’s some video:

Socially Unacceptable

Remember a couple weeks back when Barack, Michelle and their media entourage flew to New York City one Saturday night for dinner and a show?  Imagine what would have happened if the following week David Letterman did a “Top Ten” list of the worst moments of their trip and said this:

“Number 2 – Finding out that the restaurant didn’t serve fried chicken and watermelon“

Not only would Letterman be retired right now, but so would the writers and producers of his show and the head of CBS would be offering profuse apologies to the Obamas. There would be protests, advertising boycotts, and denunciations of Letterman from the leaders of both parties. You can be sure Keith Olbermann would be ranting “How dare you sir!” and he wouldn’t be blaming the Obama’s for political opportunism. People would be outraged, and rightly so.

Not that long ago racism was socially acceptable and racial discrimination was legal.  Academics prepared scholarly treatises asserting the superiority of the white race.  Many (white) people believed that it was the “white man’s burden” to exercise control over the “lesser” races for their own benefit.

Senator Robert Byrd of West Virgina is a former member of the Ku Klux Klan. That was in 1942.  He is now third in line of succession to the Presidency. Former senator and Supreme Court justice Hugo Black is another prominent figure who once belonged to the Klan.

At it’s peak in the 1920’s the Klan had millions of members from all levels of society:

Indiana’s Klansmen represented a wide cross section of society: they were not disproportionately urban or rural, nor were they significantly more or less likely than other members of society to be from the working class, middle class, or professional ranks.

Once upon a time the Klan had major political influence in the South and Midwest. Nowadays the Klan is a fringe group that is viewed with disgust by the vast majority of the nation.

We Told You So!

Another day, another broken promise:

The Supreme Court on Monday turned down a challenge to the Pentagon policy forbidding gays and lesbians from serving openly in the military, granting a request by the Obama administration.

[…]

In court papers, the administration said the appeals court ruled correctly in this case when it found that “don’t ask, don’t tell” is “rationally related to the government’s legitimate interest in military discipline and cohesion.”

During last year’s campaign, President Barack Obama indicated he supported the eventual repeal of the policy, but he has made no specific move to do so since taking office in January. Meanwhile, the White House has said it won’t stop gays and lesbians from being dismissed from the military.

(emphasis added)

Well it’s good to know our red-blooded warriors won’t have to worry about catching teh gay from a toilet seat while they are keeping the world safe for democracy.

(Cue the Obots Failbots explaining that this is more “11-dimensional chess”)

Here’s a tip from Arthur Silber:

Don’t try to keep a list of all of Obama’s broken “promises.” Instead, keep a list of the promises you think he made that he’s kept. In this manner, your work will be brief and undemanding.

At the moment, I can’t think of a single issue of importance that would appear on a list of promises Obama wanted us to believe he was making, and that he has kept. Not even one.

Nonetheless, he has kept one commitment, the overriding one that was obvious from the beginning but that he notably restrained himself from offering explicitly: that he would faithfully serve the interests of the ruling class, that he would increase their already massive power and wealth still more, and that he would entrench them and their particular interests so that they would become impervious to all serious challenge.

It’s gonna be a long four years.

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Sotomayor Round-up: It’s about more than abortion

But if you are of child bearing age, stock up on Plan B.

Realistically, the Republicans have already won the Roe v. Wade battle.  Anthony Kennedy is persuadable, given the right case.  He nearly caved on Webster v. Casey back when Sandra Day O’Connor was on the bench.  She had to talk him out of it but it was touch and go for awhile there.  Kennedy only reluctantly agreed with her in the end.  There’s no Sandra Day around anymore but there are a whole lot more blustering, former altar boys on the bench.

Sotomayor may not be an Antonin Scalia but the sense I am getting from her is that she’s no Souter either.  I was stunned to learn from Gibbs that Obama never asked her what she thinks of Roe.  It’s probably because he doesn’t need to know.  It’s beneficial to both parties for Roe to stay on the books.  So, it’s likely that a test case like Webster will never come up again.  No, instead we will have more of the kind of cases where the right to have an abortion remains but the actuality of obtaining one is very difficult.  Maybe we’ll go back to the days of the early 70’s where you had to take a trip to New York.  And Sotomayor will probably be just fine with that.  It allows her a certain amount of cognitive dissonance.  She never has to outlaw it or condone it outright.  She can be technically pro-choice while being practically pro-life.

This doesn’t come as any surprise to those of us who followed Obama’s rhetoric on the subject last year.  It was above his paygrade to comment on it but any such decision needs a supermajority from all of your friends, family and religious authorities.  Women, you can’t do this by yourself.  Your eency-weency brains and underdeveloped sense of morality require the assistance of others wiser than you.  If you decide you want an abortion after all, they can shame you for being a wanton woman and if you decide to put the kid up for adoption they can call you heartless and non-maternal.  If you keep it, you will be a burden to your family.  Gosh, don’t you miss the olden days when it was everyone else’s business to know what is going on in your life and pass judgment on it?  I doubt that Obama appointed a truly pro-choice nominee because the evangelical base might desert him.  He’s not too worried about you 20 somethings.  I mean, where else are you going to go?  As long as he is also technically pro-choice, he’s going to be heads and tails better than any Republican, right?  Oh, right, they already have 5 votes to overturn Roe.  Funny, they had that *before* the 2008 election too.

I sure feel smart that I voted for the woman:

Sotomayor has accumulated a record on church-state issues, insurance cases and employment law.  I haven’t read everything and I don’t claim to understand all of it anyway.  But my sense is that she is very deferential to authority.  Maybe that’s why George H. W. Bush appointed her as a judge in the first place and why she was offered by the Democrats to the Republicans during the last administration.  It may very well be the case that her upbringing will have an impact on her judicial temperament but not in the way Republicans fear.  In fact, they almost seem to be playing tar-baby with Sotomayor.  What kind of person comes out of an ethnic, urban, working class, Catholic upbringing, who spent years in a parochial school and excelled at pleasing those paragons of virtue and authority, the formidable Catholic nun?  What kind of person does that produce?  I mean, other than Maureen Dowd and Chris Matthews?

Yeah, imagine Chris Matthews on the SCOTUS.  That’s Sotomayor.

Wednesday: Feelings, nothing more than feeeeeelings.

Mike Huckabee is laying down the law on Sonia Sotomayor.  He won’t be having any touchy feely stuff from *this* SCOTUS nominee:

“The notion that appellate court decisions are to be interpreted by the ‘feelings’ of the judge is a direct affront of the basic premise of our judicial system that is supposed to apply the law without personal emotion. If she is confirmed, then we need to take the blindfold off Lady Justice.”

Well, it’s not like Mike Huckabee has any say in the matter.  He’s not in the Senate.  But what about the Republicans who are in the Senate?  How do they “feel” about Sotomayor’s “feelings”?

Orrin Hatch (R-Utah): “I will focus on determining whether Judge Sotomayor is committed to deciding cases based only on the law as made by the people and their elected representatives, not on personal feelings or politics.

Mitch McConnell (R-Ky.): “We will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.

Charles Grassley (R-Iowa): “The Judiciary Committee should take time to ensure that the nominee will be true to the Constitution and apply the law, not personal politics, feelings or preferences.

John Cornyn (R-Tx.): “She must prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings, and preferences.”

Guys, I think this here is what we call a “meme”. Other than the fact that they sound like Beau Bridges from the Fabulous Baker Boys screaming that he’s not going to play Feelings on the piano anymore, we can assume that the Republican’s plan of attack is Sotomayor’s very honest assessment that her feelings and personal experience is likely to play a role in her judicial temperament.

Of course, Republican nominees for the SCOTUS *never* let their feelings get in the way. Clarence Thomas did not go to the Supreme Court with a chip on his shoulder to lead an undistinguished career as a justice:

Antonin “Il Duce” Scalia doesn’t write “foaming at the mouth”, lunatic screeds in dissent:

I’m sure that when Sandra Day O’Connor made that comment at the cocktail party in 2000 that she hoped a Republican would be elected president so that she would be replaced by another Republican (woman), it didn’t reflect her future narrowly tailored decision to throw the election to Bush as opposed to Gore later that year.  I’m sure she feels no regret over that.

Or when Anthony Kennedy wrote on the Partial Birth Abortion Act of 2003:

“It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast developing skull of the unborn child, a child assuming the human form.”

Anthony Kennedy, pompous (and clueless) windbag

the fact that research doesn’t support his supposition of  self-evidency was not an example of his own anarchronistic bias or “feelings”.  He most certainly did not allow his emotions to get in the way when he wrote that, even it if does seem like he pulled it from his ass because he doesn’t understand that some of those “brains” in those unborn children do not exist and that their rapidly developing empty heads pose a threat to their mothers when they can’t be born.  Whew!  Aren’t we lucky he’s our fifth vote against overturning Roe v Wade?

It’s a good thing that Sam Alito doesn’t respond like his wife to accusations of bigotry.  Remember when she dashed from the confirmation hearings in tears, her feelings overcome when Lindsay Graham asked Sam if he was a bigot? Oh, sure, we thought it was staged but maybe she was just ashamed of the fact that Alito was once a founding member of Concerned Alumni of Princeton back in the 70’s that wanted to keep minorities and women out of the hallowed eating halls. Bigotry is a very serious accusation and shows some wont of feelings for the feelings of others, not to mentions some seriously screwed up feelings on the part of the bigot.

Roberts' animatronic family provided by Disney

Well, thank Gawd for John Roberts.  At least he doesn’t worry about feelings.  Unless you consider this exchange he had with a defender of the voting rights act:

Roberts was relentless in challenging Katyal: “So your answer is that Congress can impose this disparate treatment forever because of the history in the South?”

“Absolutely not,” Katyal said.

“When can they—when do they have to stop?”

“Congress here said that twenty-five years was the appropriate reauthorization period.”

“Well, they said five years originally, and then another twenty years,” Roberts said, referring to previous reauthorizations of the act. “I mean, at some point it begins to look like the idea is that this is going to go on forever.”

If it weren’t for his cold-blooded disregard for the sentiments of minority voters in the south who may still require our protection, one might almost detect a note of disdain and impatience in Chief Justice Roberts tone.

Yes, we will have no feelings from Sonia Sotomayor.

Great!  Since there will be none of that messy, human stuff at her confirmation hearings, maybe we can find out what she thinks about corporate personhood instead.

BTW:  Today is BostonBoomer’s defense of her dissertation.  Wish her luck!

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Button up. Your sexism is showing.

Sonia Sotomayor

So now it’s Sotomayor. According to Jeffrey Rosen, who spoke to some law clerk, she’s not fit to be a judge on the Supreme Court because she has opinions, she expresses those opinions, she expresses those opinions forcefully and at length.

(Shows you how much I know about the law. I thought that was practically the description of the Supremes.)

Greenwald does one of his usual masterful takedowns, and adds a very interesting update at the end:

Jeffrey Rosen’s brother-in-law is Neal Katyal, the current Deputy Solicitor General in the Obama administration. If Sotomayor’s prospects are torpedoed, that could clear the way for one of the other leading candidates to be named to the Court: current Solicitor General Elena Kagan. The selection of Kagan (rather than Sotomayor) would almost certainly result in Rosen’s brother-in-law (Katyal) becoming Solicitor General. Additionally, Katyal himself was once a clerk for a Second Circuit judge, obviously raising the question of whether he was one of the anonymous sources for his brother-in-law’s hit piece disparaging Sotomayor’s intellect and character.

One can question whether this Rosen/Katyal relationship should have been disclosed by TNR (on balance, it was probably unnecessary), but at the very least, these are illustrative of the types of problems that inevitably arise when anonymous sources are used so casually in a political culture rife with incestuous relationships and conflicts of interest.

However, what’s a boring potential conflict of interest? Let’s talk about Sotomayor. She talks! She’s forceful! How awful!

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And apparently that’s been enough to get the “keepers of conventional wisdom” (to use Greenwald’s words) riled up about the potential horrors of affirmative action. “Good God. You can’t waste such a vital job on some politically correct nonsense. The only criterion should be the best, um, person for the job. Why should a woman get it?”

As I said, button up. Your sexism is showing.

There isn’t one shred of evidence that women have inferior mental capacity to men. (Insofar as there is evidence, it’s actually on the other side. On average girls show earlier verbalization in infancy, better school grades, and higher test scores until, for some reason — possibly they talk too much and they’re too loud — they hit the job world and start getting paid less and promoted less.) So, in a reality-based context it’s safe to assume that women are at least the equals of men in ability. And yet the overwhelming preponderance of powerful positions are filled by men.

Yes, there’s affirmative action. And, yes, it does lead to less competent people being given jobs that are beyond them. It’s time to end that. We should find the best person for the job. Why should it be given to a man?

Thursday: Backstory- Laboratories of Democracy

Early morning TC today so this will be quick.

I found a new podcast to recommend.  It’s called Backstory.  The concept is three historians, one from each of the last three centuries, who cover current events and their evolution in American History.  The podcast is a top notch production and the topics are well researched.  One of the more recent podcasts, called Laboratories of Democracy, focuses on states’ rights and federalism.  You may be surprised to learn that federalism has many different definitions.  It’s one of those fungible ideas that can mean what ever the speaker wants it to mean.

The Backstory guys also discuss the 14th amendment in this podcast and what it means in terms of civil rights for persons.  Person, in this case, may also refer to a corporation.  It occured to me that I would very much like to know what the next supreme court justice thinks about the 14th amendment.  Does it refer to corporations?  What about women?  Would equal protection also apply to  persons seeking specific medical procedures?

The federalism episode was produced in February, before Souter announced his retirement, so it wasn’t produced in reference to the Supreme Court vacancy.  You may recall that during the Republican administrations, Supreme Court nominees were selected based on their membership in the Federalist Society.  That’s code for something and the Laboratories in Democracy podcast hint at what that might be.  This podcast is one to keep an ear on for a comprehensive background briefing on how we got here in this point in time.  Check it out.

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