gatheringstorm8

Random thoughts

Sat, 11 Jul 2009 17:06:29 GMT

*Especially because he could repeal DADT in fifteen minutes, it's more than a little annoying that Obama keeps telling his gay supporters to be patient, hold tight, wait. Baby steps. We'll get there eventually, but in the meantime, don't rock the boat. That sort of argument has been made before, and Obama, more than most, should understand the sting of being told to wait until a more convenient time for full legal equality.

*The most basic level of patriotism seems to be support for the armed forces. No matter how bad things in Iraq got, no one would say that they were against the soldiers, or even that they were anything but 200% behind their efforts. And this was after Abu Ghraib, Gitmo, and sincere arguments made in favor of torture. Why? We don't have a draft--our military is all volunteer. Does this ever mean that they bear some responsibility for what the military does? Why is criticizing the military off limits?

*And speaking of torture--John McCain was right. It's not about them, it's about us. To subject a person in your control to such agony that they do what you want does not just change them for the worse, it changes us. People use this reasoning in plenty of other places. Take capital punishment. Supporters sometimes argue that the most hardened criminals, those whose crimes meet a certain threshold of evil, deserve to die. This language of deservedness is important, since it refers to something about the character of the condemned, not just that what they did was detestable, but that they themselves are detestable. This in turn means one of two things: either the commission of the crime has changed them into something so dangerous or repulsive that they cannot be allowed to live among us, or they were already this dangerous or repulsive and the commission of the crime revealed it. I find this argument fairly persuasive, and this is one of the reasons I oppose both torture in all realistic circumstances as well as capital punishment. We are not monsters, and we must not become monsters.

*There are only two legitimate reasons for criminal punishment: deterrence, and incapacitation. Vengeance is not legitimate; it has no logical end, is not bound by the parameters of proportionality, and allows the person harmed to have too much of a say in the punishment of those who have wronged them. Rehabilitation, while not a problem in theory, has played out poorly. (This may sound like it does not comport with my views of deservedness, but I see no contradiction. One is about the commission of crime and the consequences of certain approaches to punishment. The other concerns what we may legitimately and effectively do in response to crime.)

*This also means that punishment is not about past crimes; it is about future crimes.

*Bernie Madoff should not be in jail. Nor should anyone else who has not committed a violent crime. Probation, house arrest, fines, community service, treatment, etc. are usually better responses. People only need to be locked up if they present a physical danger to others. And our approach to punishment generally should be guided by principles of reticence and proportionality: if we do not need to go further, we need to go no further; and some punishments should be out of bounds for most crimes, and others for all crimes, even if these are the only effective means of deterrence.

*And I love Audrey. (She really wanted me to put this in. It's true, quite true. Even if out of sync with everything else.)

Tue, 02 Jun 2009 02:22:42 GMT

So...anyone hear Scott Roeder (the guy who murdered the abortion doctor) called a terrorist?

No?

You neither?

Guess it's only terrorism if they're brown.

(Or at least foreign.)

Sat, 30 May 2009 03:42:15 GMT

So...Earnest goes to Africa may be the most racist movie ever.

Mon, 19 Jan 2009 17:11:29 GMT

So I just saw Robin Miller on food network make what she called a "strawberry soup." It was made of frozen strawberries, vanilla yogurt and orange juice, blended, and topped with whipped cream in the bowl.

Sounds delicious? It is.

But that's no soup. That's a smoothie. That is quite clearly a smoothie.

Just sayin'.

Fri, 14 Nov 2008 03:27:20 GMT

Quick question to anyone who wants to answer--what do you do when a friend has political opinions that you find absolutely reprehensible?

Thu, 25 Sep 2008 19:26:46 GMT

Apparently, a lot of people still haven't read this.

Read it. It's short, and while not every point is perfect, the whole thing is definitely worth reading.

Wed, 17 Sep 2008 02:19:59 GMT

Public declaration: I am in love with one Audrey Katrina Fenske.

I'm not much for getting sentimental, but even I have my moments. And every day of my life is better for her having been a part of it.

That is all. I will soon resume my regularly scheduled bitching.

Sat, 13 Sep 2008 02:03:37 GMT

So, I just got an early birthday present from Audrey. She got me a PS3.

Wow. I don't really know any other way to say it: I really, really love my girlfriend.

Wed, 03 Sep 2008 23:38:28 GMT

Dear democrats, liberals, progressives and others of my leftist ilk,

Please stop going after Sarah Palin's kids. Please stop insinuating that she should stay home with her children instead of running for office. And please stop insisting that her looks tell you something about her intelligence. Just because she's on the other side doesn't mean that we should sacrifice all of our principles, norms and ideals in our rampage.

Just stop. Stick to the issues and what the country would look like with her in the VP slot.

That is all.

D.C. v. Heller

Thu, 26 Jun 2008 15:12:14 GMT

Shit. I was afraid this would happen. Because the answer to too much violence is...more guns? As if having a gun, even on you, will help when the bad guys have the drop on you.

Yeah, this won't result in more robberies becoming homicide cases.

I will post the opinion later.

UPDATE

Opinion is here.

Kennedy v. Louisiana

Wed, 25 Jun 2008 15:34:55 GMT

Until I can get my hands of the .pdf of the decision later, this will have to do. Kennedy's two for two now with 5-4 decisions.

More on this later, but the gist of this seems to be, "no death, no death penalty".

UPDATE
Here is the opinion. I obviously haven't had much time to go over the opinion, but at first blush, it seems a lot like Roper and Atkins, the other relatively recent Court decisions on substantial questions regarding the proper applicability of capital punishment. Just like them, it relies on a case from the Warren Court years called Trop v. Dulles and the Court's jurisprudence since then.

Basically, the idea that has endured from that case is that our interpretation of the Eight Amendment, particularly what constitutes "cruel and unusual punishment," should be informed by "the evolving standards of decency that mark the progress of a maturing society." That, in turn, is best determined by looking at the things explicitly written into the law by the elected representatives of the body politic.

I think this decision was the right one given the legislative history they discuss. Only six states, including Louisiana, had laws on the books that allow capital punishment as a punishment for the rape of a child, and no one had actually been executed for anything besides murder since the 60s.

So, it seems fair to say that the idea of punishing child rape with murder is something that our country had outgrown. That makes sense. This decision fits into that framework and seems to satisfy the standards that the Court has set out in past opinions.

My objections are with the reasoning they use and the sorts of things they accept as evidence.

First off, the fact that they look to legislation to determine whether or not there is some sort of national consensus means that they are simultaneously too democratic and insufficiently democratic. Not all of that on which we commonly agree makes its way into law. Or, if it does make its way into law, it is often gutted and riddled with loopholes.

Take income taxes for example. The vast majority of Americans support a progressive income tax, where people pay who make more money pay a higher percentage of their income in taxes. However, while laws like this are on the books, they are effectively nullified by laws that, for example, tax capital gains at lower rate than income that was actually earned. Thus, a look only at the laws on the books would give a false impression of the collective American opinion. This, in turn, means that a jurisprudence based only, or primarily, on legislative record does little more than pay lip service to the idea of supporting and reflecting American mores.

Yet, I'm little troubled by this. Unchecked democracy is stupid and dangerous. (I personally believe that it is less important that everyone have an equal say in the decisions that are collectively made for the body politic than that everyone is given sufficient opportunity to pursue their own reasonable conception of the good.) That's why we have independent courts to check the elected branches of government—tyranny can be a group effort.

However, this sort of jurisprudence is equally poor as a check on popular rule for obvious reasons. But even more than this, it prevents the Court from being a leader and restricts it to the role of corraling stragglers. Think about it—the Court looks to see if a particular practice is so morally dubious that most states have agreed, independently, not to engage in it. This means that the Court will only check the most abhorrent practices, after they have already been recognized as such by the vast majority of people; and once the Court has done so, all it does is prevent that backward minority from straying too far from what everyone else is doing.

This is profoundly non-progressive, and it leaves open the possibility of an outright devolution. What happens if lots of states start passing barbaric laws? Could something that was before unconstitutional somehow become constitutional? Could we return to the days when juveniles and the mentally retarded could be executed, if enough states passed laws to that effect before the Court took up the case?

The only way that wouldn't happen, if enough states enacted such laws to counter the weight of stare decisis, is if the Court were to take seriously the idea of moral progress. But this, in turn, implies that there is some final goal state toward which we are working. Otherwise, the term “progress” doesn't mean much of anything.

And if we know what the goal state is, at least in moderate detail, then why on earth do we need to look for a legislative consensus to tell us what does and does not constitute “cruel and unusual punishment?” Why should the Court be unable to ban as “cruel and unusual” that which is blatantly so without looking to the elected branches of government to see if they did it first? Why, as the ultimate guardian of civil liberties and civil rights, should the Court adopt a jurisprudence that binds it to tinkering around the edges?

But, again, these reflections are inchoate at best, and I've probably missed something. (Derrick, I'm looking to you in particular on this one.) Your thoughts?

Thu, 19 Jun 2008 14:35:49 GMT

There we have it.

And I used to think that protesters chanting "No blood for oil!" were probably just conspiracy theorists.

Which, apparently, makes them somewhat prescient, or at least extraordinarily perceptive, when the conspiracy unfolds.

Fri, 13 Jun 2008 13:20:50 GMT

Finally, a ruling on Gitmo. Turns out you can't just grab a bunch of people, American and foreign, and lock them away for years without accusing them of anything or explaining why they are dangerous. Who knew?

Perhaps we should stick to suspending habeus corpus, for anyone on our soil, only "when in cases of rebellion or invasion", hmm?

Pentagon Pundits

Sun, 04 May 2008 15:02:58 GMT

So, I was going to put up an angry post asking why we haven't heard jack shit about this since the day the Times broke the story, but Arianna Huffington has already said everything I wanted to say, better than I could have said it.

Now, can we please get back to real news? I haven't heard nearly enough about how Obama's former pastor is a racist, or how he might be a black nationalist.

Terrible Tuesdays

Wed, 30 Apr 2008 02:42:58 GMT

This is the first of what I would like to become a weekly entry: Terrible Tuesdays. Basically, I'll put up the most inappropriately funny thing I have come across in the previous week.

Yes, some of this will be offensive. Probably all of it. But, I think, it will still be hilarious.

You have been warned.

This week, it goes out to the Star Fox fans among us. Thanks to Audrey, I have recently been made aware of the glory that is Star Fox 64.

Again, this is offensive, and probably NSFW. You have been warned.

McCain and the Fair Pay Act

Thu, 24 Apr 2008 19:27:40 GMT

Yet another shortcoming of John McCain: he opposes the Fair Pay Bill. For those who haven't kept up, what the Fair Pay Bill would do is make it easier for women to sue employers who discriminate against them. Sex-based discrimination was banned by Title VII of the Civil Rights Act of 1964, but there have been issues with its implementation.

In other words this act basically requires employers to pay men and women the same amount for the same work, and allows women who don't get their fair share to sue. (Seems fair enough.) It was passed in response the recent Ledbetter case in the Supreme Court.

In short, here's what the case was about: Lily Ledbetter worked for Goodyear for several years where pay raises were based, in part, on performance evaluations. She received poor evaluations (whether rightly or wrongly I don't know) and she did not receive the same amount in pay raises as her male colleagues. She eventually sued Goodyear, alleging that the poor evaluations were due to her sex rather than her performance and the case eventually made its way up to the Supreme Court.

The Court held that her suit was untimely--basically, she didn't move fast enough. Why, you ask, was she too late? Because she didn't file within the 180 day limit. Your next question is probably: Well, when did her 180 day window begin?

This is the point on which Alito's decision turns. Whereas it seems to make more sense that it would start at the last paycheck (because it is with each paycheck, after all, that she suffers the effects of the discrimination), Alito opines that it starts with the discriminatory act itself, and that later nondiscriminatory acts that simply carry those effects further don't count as discriminatory acts themselves. In other words, the evaluations were discriminatory, but the lower paychecks that resulted from the evaluations, in and of themselves, were not. Thus she'd have had to file within 180 days of the most recent discriminatory evaluation or not at all.

Now, just think about this for a moment and let the implications set it. This means that unless you're able to find out almost immediately that you've been dicked over because you're a woman, you can't do anything about it.

And please keep in mind: at many jobs, it is forbidden to talk with your co-workers about your pay, and with most, it's at least bad form. A culture of privacy about pay at many occupations, often backed by the threat of sanctions, will keep you from learning if you've been shafted or not. Even if you are, somehow, able to find out that you make less money than others at your job, you still have to determine if it's due to some form of discrimination--and this requires learning the pay of enough of your coworkers to establish that pay differentials move along lines of gender or race.

Think all that can be done in under six months--start a job, or receive an promotion or raise; learn the pay rates of enough co-workers to suspect discrimination; hire a lawyer to pursue the case; file a lawsuit? Me neither.

Discovering the problem is made even more unlikely by the fact that discrimination often only becomes apparent over time--for instance, as in Lily Ledbetter's case, when the discrimination takes the form of lower pay raises, the effects of which accrue over time and only become apparent relatively late in the game.

So this case (Ledbetter), basically, makes Chapter VII of the Civil Rights Act of 1964 virtually useless. It simply shrinks to irrelevance the period of time in which a woman could learn that she's been discriminated against.

The Fair Pay Bill would have fixed this problem. McCain instead, chose to skip the vote and has stated his antipathy towards it.

His justification:

"I am all in favor of pay equity for women, but this kind of legislation, as is typical of what's being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems," the expected GOP presidential nominee told reporters. "This is government playing a much, much greater role in the business of a private enterprise system."

Because, clearly, there shouldn't be any way to enforce the legal right to equal pay for equal work. No, instead, we should leave it up to the companies who are discriminating against women in the first place. We should trust them to police themselves.

Talk about the fox guarding the henhouse.

God, the more I hear about John McCain, the less I can stand. There, my Republican friends, is your "maverick."

PA Primary Results/Hillary Rant

Wed, 23 Apr 2008 14:08:58 GMT

Okay, so Hillary Clinton won Pennsylvania--big surprise. But it was by less than ten points and the delegate gap narrowed by only 9 delegates (66 to 57). He should be able to make this up in North Carolina, at least.

God, the longer this campaign drags on, the less I like Clinton. From the Obama's not a Muslim "as far as I know" replies to her gift to Drudge of Obama in traditional Somali garb to her 3am phone call ad, she seems to have lifted more than one play from the Rovian fearmongering playbook.

Because that's just what we need--more vague fear of the unknown with no obvious way to direct it constructively.

As much as I like many of her policies, her hawkish foreign policies notwithstanding, I'm not sure how much more of this we can take. She's going to splinter the party, see the election of McCrazy and ensure the sundering of an already right-leaning supreme court. Bye bye Roe; bye bye habeus corpus; bye bye Geneva conventions.

Far be it from me to tell her to drop out. Even if she probably won't win it (and her chances are slimmer now than ever), it's her goddamn right. She shouldn't drop out so that Obama can have the support of the Clintonites; Obama should persuade them that he is the stronger candidate, and has the better policy proposals and judgment, and will do better things for the country. (Because this is, after all, what elections are all about.) But, her scorched-earth tactics do make me wonder if, as Bob Cesca so often argues, she's in it to win it: in 2012.

First blog post.

Mon, 14 Apr 2008 04:20:56 GMT

First blog post. There.

Anyone have an idea for a real post, anything on which they'd like me to opine?