Saturday, July 02, 2022

Louder And Not Funnier

Both times, GOP Presidents. Coincidence? Or clear and present danger?* Bullies do the same thing. People understand that better than “stochastic terrorism.” They also understand the simple sarcasm of “just kidding!”

Still ain’t funny, McGee.
What’s cute here is taking “originalism” so seriously you think it matters. Read the collected opinions of an originalist like Scalia. I defy you to find any consistency. Originalism doesn’t matter; it never did. It’s MAGA for the legal crowd.

What, you thought only Trump supporters were easily duped? It’s never the crime. It’s always the cover-up. (To be honest, I don’t like the quote; but I like the way he used it.)

*Yeah, I went there because, shit, what’s it take?

Was Lochner Really So Bad? Really?

 Since we are on the consequences of Dobbs, here is as good as anywhere to comment on something that caught my notice when the draft decision was leaked and appears to have made it to the final opinion. Alito and the other reactionaries have some stomach churning views of Lochner. "West Coast Hotel signaled the demise of an entire line of important precedents that had protected an individual liberty right against state and federal health and welfare legislation." and "For example, American businesses and workers relied on Lochner v. New York, 198 U. S. 45 (1905), and Adkins v. Children’s Hospital of D. C., 261 U. S. 525 (1923), to construct a laissez-faire economy that was free of substantial regulation." So with the demise of Lochner "we" all lost an individual liberty right against health and safety legislation. I am sure the industrial worker was devastated to lose their right to breath lead dust, cotton fibers, and coal dust, along with losing the right to lose a limb or worse to dangerous machinery, be crushed in a mine collapse or fall off a building without safety equipment. I am sure the 10 year old factory or mine worker was distraught to lose their right to participate in the majesty of the laissez-faire capitalist system. Words like liberty and freedom are twisted to just their opposite by our cynical advocates and jurists. Of course none of this is new, the same cynical logic was need to protect the rights, freedom and liberty of the slave owner to retrieve their property under the Fugitive Slave Act. The freedom, rights and liberties that matter are those that make the rich richer, the powerful more powerful, and the poor and powerless become exploited, sick, maimed and dead. It is the capability of the advocate and jurist to remove the human from the intellectual discussion of these ideals (to which they are well compensated) and to reduce human suffering to cold abstractions that is the foundation of this glittering edifice to which we are all supposed to genuflect in adoration of our new "rights, freedoms and liberties". Too much of the press coverage addresses these cases as if these supposed freedoms, liberty and rights have the same application and consequences for everyone. Of all the decisions out of the court this term, Dobbs seems to be the only one where the press has begun to address the human element, with questions about women with ectopic pregnancies, couples wanting IVF and other intersections of the law and humans. I am mostly in despair. Each decision has a roadmap for further challenges and further erosion of our individual freedoms and our ability to collectively respond to our societal challenges.

The best legal writing I've ever read was written by Judge Learned Hand (also the best name for a judge, ever). Banjamin Cardozo comes a close second. Both men carefully and rationally balance the requirements of the law and the concerns of the people affected by the law.  There are always two parties in a legal analysis, and I don't mean the opposing parties in a lawsuit.  There are the interests of society: in justice, in fairness, in legal reasoning and laws they can understand and derive guidance from (and I don't mean spiritual or psychological guidance; I mean a clear expectation of what to do to comply with the law).  And there are the interests of the parties, the people who deserve fairness and justice and also want to know what to do to comply with the law.  What affects one affects all (no, not in the stupid "Q-Anon" sense).  Judges rule for the parties, and for the country (or just state) at large.  It's a burden; it's a balancing.

When you start doing things like imposing morality, deciding what is right and what is wrong, as with Justice Thomas complaining that covid vaccines were developed from stem cells from aborted fetuses (to begin with, abortion is a medical procedure used to protect the health of the mother, not just a "eww, baby icky, make it go away!" procedure imagined as the new massacre of the innocents.  We really need to get clear on that.).  His statement was primarily moral; but it is his morality, not mine.  He imagines abortions as women simply being callous and promiscuous.  I understand them as often necessary for the health, not just the life, of the mother.  Justice Thomas can abstain from taking covid vaccines on that principle, if he wishes.  He can't make the rest of us abstain, however, because of his moral compunctions.  He does not, and should not, have that authority.  Imposing morality on others, especially when you are an unelected and unresponsive super-legislator (how else do we describe the Supreme Court now?) is beyond the bounds not only of prudential jurisprudence, but the law itself.  So be careful with the arguments about law and morality.  Murder is not a moral question, it's a legal one.  Punishment for murder is necessary for the ordering of society.  Punishment for abortion is a much less clear question in law, and even murkier in morality.  If the abortion is a medical procedure responsive to the healthcare of the mother (there are far more situations involving that than you are aware of, unless you work in ob/gyn), it's not exactly elective surgery on the order of a boob job.

Indeed, I would argue that boob jobs and plastic surgery for purely cosmetic (as opposed to reconstructive) purposes is far more immoral.  But it's hardly grounds for criminalizing it, is it?

The argument in that tweet above is an argument to return to the "good old days" of Lochner, when "freedom" was the proper ideal, and any question of disparity of power between labor and employer was disregarded as irrelevant.  Lochner even predates real child labor laws, which FDR finally backed because it meant adults would take the jobs children were still doing; and FDR needed able-bodied adults working.  He wasn't as concerned with the condition of the children, as he was with the economy and his re-election chances.

Well, it's how the system works.

And I'm not sure the "major question" doctrine the Supreme Court used in that EPA case is solely a methord for deciding which agency should impose the policy.  It's the question of whether any policy can survive a "major question" analysis; which is the point of the new method of analysis:

Returning to Lochner is feature, not bug. “Major question” is whatever the Court wants it to be, and it will always be what the agency in question is not allowed to do. Whatever that is. Congress could create a Cabinet-level “Department of Atmosphere Care and Global Warming Reversal,” and there would still be a “Major Question” limiting its ability to regulate anything.

The secret is in the definition; and there is no definition.

That’s some catch, that catch-22. 

Friday, July 01, 2022


As Molly Ivins Liked To Say....

"It's a representative government." "Be careful what you ask for; you might get it."

"The road to hell is paved with good intentions."

"How Terribly Strange To Be Seventy"--Paul Simon

I don't face this problem. Yes, I don't like other people. But all of my friends live in other states. Which is probably why they are still my friends.

And I don't even talk to my wife before breakfast.  Sometimes not before noon.  Why would I go out for bad eggs and worse coffee just to have people to grumble at?

Wait, now that I think about that.....

The Cherry On The Sundae 🍒

As long as we don’t talk about Trump wanting to go to the Capitol and lead the crowd to the House chamber. The one fact about that SUV ride no one disputes. And the only fact that matters. But this is where it gets interesting.

Someone Else Who Wasn’t Here In The’70’s…

...for Robert Tilton and Oral Roberts and Jimmy Swaggart and Jim & Tammy Faye, all laying the railroad tracks for Pat Robertson to run for President and Jerry Falwell to lead the Moral Majority and open the way for Ralph Reed and Ronald Reagan, straight on to Donald Trump.

Which was preceded in turn by Father Coughlin and Aimee Semple McPherson and all the preachers who obtained the power and the glory in the first half of the 20th century, and sank back down into darkness, forgotten; because all fame is fleeting, and of the world, anyway. As is all politics and accomplishments of politicians, because the Greeks were right so long, long ago: chaos is eternal and unstoppable, always gnawing at the roots and the foundations and honest women and men cannot work long enough or hard enough or fully enough to stay ahead of it. But it isn’t the faceless action of chaos, it is the selfish actions of humans that bring down and destroy even the greatest triumphs. And who can fully answer why, except that is how they are and that is what they do, and it is from everlasting to everlasting, and it’s not going to change soon.

Bubble up? That assumes it ever goes away.

Thursday, June 30, 2022


"She] said that I wanted guns at my rally," he continued. "I didn't want guns. I had to speak too. I didn't want guns."

Speaking As A Student…

...of textual analysis and interpretation (exegesis) across three disciplines (literature, law, biblical studies) , as well as philosophy and theology, I can say with some authority that I always thought “textualism” in legal analysis was crap. It’s so far behind the praxis of even literary analysis as I was studying it 44 years ago it’s just farcical to speak of it seriously. Textual analysis, literary analysis (in all its schools), exegesis, all rest on a premise of making an interpretation out of an analysis. But it is understood that interpretation is itself subject to interpretation, and all interpretations have their validities; or at least have to be considered and examined.

Textualism in legal analysis is a way of stifling examination by declaring the preferred argument to be the “right” interpretation, and defending that conclusion by appealing to the text as if such an appeal was objectively correct. It’s the appeal to objectivity that is the fundamental problem. That’s a 19th century posture which no modern school of analysis supports (not even science), Modern legal analysis clings to it even though it’s not the heritage of the common law or the history of legal reasoning.*

One of the bedrocks of legal analysis is the "reasonably prudent person."  This imagined creature, much discussed in jurisprudence and even case law, is not meant to be a purely objective observer or even creature; but a human being placed as centrally as possible in the situations presented by the law, and reacting to/understanding the reaction to, those situations.  So in a fraud case:  would a reasonably prudent person be defrauded, i.e., misled, by the alleged fraud?  Would they rely on the misrepesentations to their harm?  Would they expect the premises to be safe, only to be injured by their condition (the torts arising from premises liability).  It's a standard of understanding that tries to understand the situation, and the expectations the law can place on persons, from the point of view of an ordinary person of "reasonable prudence."  Not too stupid and gullible; not too smart and clever.

Textualism leans more toward the subjective interpretation of the judge/justice doing the analysis.  When the text alone is the guiding standard, what is the text, and how is it understood?  There are decades of discussion of this very subject in literary and even philosophical circles.  Literary analysis alone examines a text from psychological positions (primarily Freudiand and Jungian); from standards of cultural and historical sitatuations; from the very concept of a "text" and the use of language both as a tool of expression and of interpretation.  Legal textualism is much closer to:  "well, we know the words, and we know what they mean, so we can decide how this law should apply, or should have always been applied."

It's practically a reductio ad absurdum.  And perfectly indefensible outside the cloistered world of judicial review.  Which is not to the credit of judicial review, or statutory interpretation.

In other words, it's no wonder textualism in the law is a stricture that applies only when it suits the ideology of the judges wielding it.  That's all it was ever for: a ready-made argument to slap on any ruling to justify the conclusion.  Not as guidance to understanding the law or the ruling or even how to apply it in future cases where the facts can alter the outcome; but just as a shield to protect the preferred result long enough to impose it.  It was already a "get-out-of-analysis-free" card.  Scalia himself applied his form of textualism, "originalism," as it suited him.  He hung it on a hanger like a suit of clothes, wearing it only when the occasion warranted; otherwise leaving it in the closet when he didn't need it.  His progeny (Thomas and Barrett in particular) took him more seriously, and wear the suits for all occassions. But it was never more than "I can't get the result I wanted this way, so I'll get it that way" method of reasoning in the first place.

Now it's just hard, if not impossible, to ignore that.

*There are well-established standards for constitutional and statutory interpretation.  Textualism and its progeny (such as "originalism," which is greater load of crap than "textualism") abandons those, in the main, for a "new and improved" standard of analysis which is neither new, improved, nor demonstrably analytical.  And it is as objective as personal preferences in food or music; in other words, not at all.

What Hath Got Wrot

I'm sure there's a moral issue there somewhere. For the life of me, I can't see the moral purpose in imposing it on the woman. For now. And in the Old West:
One example discussed was what to do if someone’s water breaks very early into the pregnancy. This could cause an infection, and the fetus is unlikely to survive, Phillips said. 
Before Roe was repealed, doctors would typically perform an abortion and other treatments to keep the patient healthy. But under the Texas trigger law, physicians would be faced with a conundrum, she said. When is the patient sick enough to warrant lifesaving care? Is it right away, since doctors know that the patient will get an infection that could complicate other care or put her safety at risk? Or does the doctor first have to let the patient reach that point to avoid legal liability? 
There are also times when doctors perform abortions because they know a pregnancy will not be successful and the baby would die after being delivered, Phillips said. But under Texas’ laws allowed after Roe was repealed, pregnant people would be forced to deliver. 
“That’s a very emotionally devastating experience,” Phillips said. “And we know Texas does not have adequate mental health services.” 
Baird was one of roughly 2,200 people attending the AWHONN conference just outside Denver. She was sitting in a board meeting Friday morning when the Supreme Court announced its decision to overturn the law. With Roe’s end, nurses anticipate an even more difficult world for their patients who face high-risk pregnancies in which the mother or fetus’ survival is in danger. Doctors and nurses will face even more difficult decisions about when to intervene and recommend terminating a high-risk pregnancy for fear of criminalization. Birth rates will likely go up and Baird fears maternal mortality rates will follow, she said. The United States has the highest maternal mortality rate of all developed countries, with significant racial and ethnic disparities. Texas has among the highest pregnancy-related deaths in the nation.


Yeah; nothing is ever that simple.

I do like the consequence that women will have to be near death before we can allow the life-saving treatment. We can’t keep people from having guns because they are “crazy,” either. Because until they shoot a half-dozen people, they aren’t crazy enough to not have a gun. Until the woman is dead, was her life really in danger?

Maybe we should focus on people, instead of on abstract ideas. 

Run For The Border

Alright, let's talk about this a second:
In April, Gov. Greg Abbott ordered state police to inspect every commercial vehicle entering Texas through a port of entry, saying the painful step was needed because the Biden administration was not doing its job to secure the border.

Drug cartels, Abbott said, were using “dangerous commercial trucks” to smuggle “immigrants, deadly fentanyl and other illegal cargo” into the state. The “enhanced commercial vehicle inspections” at the border caused hourslong delays at the inland ports, essentially grinding trade with Mexico to a halt and costing Texas businesses millions in losses.

After a week and a half, Abbott ended the inspections, announcing what he called historic security agreements with governors from border states in northern Mexico that he said would slow the flow of drugs and immigrants across the border.

But three months later, in a harrowing reminder of the risks migrants are taking to enter the country, authorities on Monday night discovered an abandoned tractor-trailer in San Antonio that contained the bodies of 46 dead migrants — another five died after being transported to local hospitals.

To immigration experts, the astounding loss of life inside the same kind of commercial vehicle Abbott had targeted in his inspections illustrates just how difficult it is to stem migration into the country, even as he has spent the last year pouring billions of state dollars into securing the border.

“Every data point we’ve seen about migration into Texas from Mexico shows that migrants are getting to the border in the same numbers as before,” said Adam Isacson, a regional security expert at the Washington Office on Latin America. “There’s no numerical evidence that it’s had any numerical impact on migrant flows.”

U.S. Customs and Border Protection agents had more encounters with migrants on the southwestern border of the country in the month that followed Abbott’s mandated vehicle inspections and agreements with Mexican governors. The agency reported 239,416 encounters in May compared to 235,478 encounters in April, when Abbott announced his new border security efforts. In March, the agency had 222,339 encounters.

You'll recall Abbott stopped that practice because it was costly, ineffective, and was slowing commercial cross-border traffic to a standstill, threatening both the Texas economy and the U.S. economy.  He did "close the border."  For 10 days.  And his officers found exactly: nothing.  The effect was nil.  Border Patrol encounters reflect either caution for a brief period, or seasonal movements.  Migrants coming from south of Mexico tend not to read the news on the way, and take months to get here, so it's not unlikely encounters with Border Patrol come in waves unrelated to a state policy rescinded 10 days after it was announced.  Or they just bided their time for two weeks.

Turns out smugglers aren't that stupid.

In case you forgot about Operation Lone Star: It's a human issue, too: All too human:

Trust The Media focus on the least important aspect of Hutchinson’s testimony, while ignoring the fact her testimony was that she was told the story by two people who were in the car.

So: were they lying then? Or will they lie under oath? I mean, their credibility won’t rest on hers.

All news is gossip. Prove me wrong.

Wednesday, June 29, 2022

Since I Brought It Up

Let's bring a little more light to this dark corner: Yeah, there's always the problem of reporting based on "she said/Anonymous said." But what about denying the substance, rather than the details? Always consider the source (who is not necessarily Ornato, but reportedly is Ornato-adjacent). Because an anonymous source threatening to "challenge" Hutchinson's testimony is not the same thing as proving she lied under oath: Whether or not Trump was that petulant and violent, he certainly wanted to go to the Capitol, to have his Mussolini moment. Trump hasn't denied it, "Anonymous" doesn't deny it.  That simple, unchallenged fact,  connects with Hutchinson's testimony that Cippolone, in her presence, told Meadows such an act would violate all manner of criminal laws, and was "insane." Yup. If they're gonna testify, it's without boundaries as to what they saw. There is no criminal exception privilege, even for SS agents.

Even Jonathan Swan, who I presumed should know better, is swallowing this shallow and barely fleshed out "anonymous" report hook, line, and sinker:
And no, it is not "second hand evidence."  It is what she was told by two different persons with knowledge of the incident.  We should expect better than this kind of "analysis." Gauntlet thrown. This is exactly where the discussion should be, and no further.

Devil's Advocate

 If I make the statement here on my blog that the "peaceful transfer of power" in Presidential elections rests on an assumption of the legitimacy of the election process, I am offering an opinion, and I'm not likely to get visited by the FBI for my seditious conspiracy tendencies.

After all, I would argue, it does.  That's why we have the 12th Amendment and the Electoral Count Act; IMHLO (both were responses to Presidential elections, and efforts to make them at least appear to be more legitimate).

But if General Flynn had offered that statement as a response to the question everyone is so upset about, would he be in the same position as me?  Or could it be interpreted by prosecutors as an admission against his interests in a criminal case for seditious conspiracy, or some other criminal charges?

I submit the latter is much more likely.  Change the facts, change the outcome.

Popehat's analysis rests on several unknowns which create assumptions.  The primary one is that Flynn would have said simply "Yes" or "No."  My hypothetical statement is not as blunt as that, but could be construed that way by prosecutors bent on charging me with a crime.  They could legitimately use that statement from my blog against me in court; but why should they be able to force me to say it from my mouth, arguably out of context and distorting what I originally meant?  The entire basis of due process and presumption of innocence is that I don't have to actively aid in my own incarceration.

The other issue is that Gen. Flynn was not testifying in court.  A trial judge may well have decided Flynn's potential (he wouldn't have answered yet) response to that question was not covered by the right to not self-incriminate.  After the answer, an appellate court might decide differently; or agree with the trial court.  That's the way the system works.

But Flynn was before a Select Committee of Congress, and his statement is only being presented in the court of public opinion.  There are no appeals there, and precious little cross examination or instruction from the bench as to how the questions raised are to be scrutinized.  So, again IMHLO, the Committee done Michael Flynn dirty.  They are using his exercise of his Constitutional rights against him.

Now, the question of the legitimacy of the election is one of Trump's key arguments.  This is not to say it is in any way a valid one. His belief that the election was illegitimate does not justify his illegal and extra-legal actions as POTUS.  Flynn may be of the opinion that the peaceful transfer of power depends on the legitimacy of the election, but that doesn't make him the arbiter of that legitimacy.  When the Court handed down Bush v. Gore, Al Gore accepted the legitimacy of the court system.  What he personally thought of the Court's opinion (the legal one, I mean) was irrelevant, and he knew it.  Had Gore refused to accept the Court's decision, that might well have been criminal; but he didn't do that. It may be irrelevant what Gen. Flynn thinks about the legitimacy of the 2020 election; or it may be an element in a criminal charge, based on his actions.  So it isn't as simple an issue as:  "Is his answer 'yes'? Or 'no'?"

And whether he properly invoked his rights is legitimately an issue for a court of law.  But none of us are even playing one on TeeVee.

Of Fools and Professionals

Lawyers shouldn't analyze legal matters from afar. Mental health professionals (and lawyers, who in this matter are mere laypeople) shouldn't diagnose mental health issues from news accounts, either. If you go to a medical professional for a second opinion, you expect an examination and a diagnosis, not just a:  "Well, I read about it in the news, and I don't think you're getting the right treatment at all!"

Sounding off on the mental state of public figures you only know from the TeeVee screen is just expressing an opinion on what you've been told; but with the imprimatur of some elevated authority for that opinion. It's unprofessional, just like lawyers who opine on some other lawyer's case (you never know as much as the lawyers working the case know, and you aren't responsible, professionally or personally, for the outcome). 

Even I think Trump has criminal liability exposure from what was said yesterday, but I'd never leap from that to a pronouncement as a lawyer that he's: "Guilty! Guilty! Guilty!"  Mark Slackmeyer could say that about Nixon (and I think he was right), but Mark Slackmeyer was a cartoon character radio announcer.  He had no more expertise than what Garry Trudeau put in his speech ballon.  Criminal guilt comes from a criminal trial, not from some lawyer with an opinion.  A mental health diagnosis should be on the same basis.

Outside the comic strip (and Walt Kelly did much the same thing to Tailgunner Joe, so there was precedent), it's rushing in where angels fear to tread.

Except That's Not The Part He's Denying

Nor is it the part the Secret Service is anonymously denying.

And the first thing Cassidy Hutchinson said in live testimony yesterday was that she spoke to Giuliani before Jan 6 and he said Trump was going to lead the crowd into the Capitol on that day, and Trump was going to be "big."

As they were heading to Giuliani's car, he asked her if she was "excited" for January 6, she testified.

When she asked what was happening on that day, Hutchinson testified that Giuliani "responded something to the effect of, 'We're going to the Capitol,'" Hutchinson said.

"'It's going to be great. The president's going to be there. He's going to look powerful. He's going to be with the members. He's going to be with the senators. Talk to the chief about it. Talk to the chief about it. He knows about it.'"

That was on January 4th.  That's what all the comparisons to Mussolini are based on today.  Not just the car ride, but what Giuliani said ahead of time.

Nobody is denying Trump wanted to go to the Capitol; not even Trump.  Who am I to do it for him?

So Here’s The Thing About Privileges

You either have ‘em, or you don’t.

You know the line from Miranda TeeVee warnings: “Anything you say can and will be used against you in a court of law.” After that, you can’t answer questions and then decide you don’t want to answer other questions, and claim your silence can’t be brought up in court.

Put up or shut up, is the basic rule.

So when you see Michael Flynn pleading the 5th as to the peaceful transfer of Presidential power, it’s not an admission of anything. He’s preserving his privilege against self-incrimination.

Anything you say to police can and will be used against you. The police investigate and prosecute crimes. They aren’t interested in “truth” (whatever that is), they are trying to make a case. If what you say to them can make that case against you, they’re happy to hear it. And what you think is innocuous, they can easily interpret as criminal. It’s what they do. 

The 5th amendment guarantees you don’t have to help them.

A witness subpoenaed to testify can refuse the subpoena and fight it out in court, or can plead the 5th. That video of Flynn is what the latter looks like.

I’m quite sure Michael Flynn is as mad as a bag of bees. But that doesn’t mean he has to put his head in the noose anymore than I do; or you do.

We all think the investigators work for truth and Justice; but abstract ideas are lousy employers. No, those government agents work for conclusions, and will always take the shortest path to get to one. That’s quite a different telos from what we imagine it to be.

Tuesday, June 28, 2022

That Was The Day That Was

But...but...but...the hearsay! A lot of commentary on NPR about the 25 year old woman with more spine (and balls) than her boss. Or Trump, implicitly. Especially how she was "disgusted" with what occurred on Jan. 6th. Obviously the Deep State turned her. Right? Goes to character and fitness for office, Your Honor! Gotta admit my favorite part was about Trump trying to grab the steering wheel (from the back seat! Can that asshole even drive?) and then choking the head of his Secret Service detail. That's the kind of story that takes no explanation, and doesn't offer much in the way of extenuating circumstances. Besides proving he really wanted to lead the crowd into the Capitol, since Pence obviously wasn't gonna do the job. He also watches TeeVee: Not really the defense he imagines it to be. Combine that with attacking his own driver for not going to the Capitol (and just replay that scene: what is he, 10 years old?) and you conclude he wanted to lead an armed crowd into the Capitol to do what Mike Pence wouldn't. And Giuliani and Meadows were down with it, because came the dawn of Jan 7, they're both asking for pardons because: Ooops! That didn't work!

This ain't Watergate.  Small children can understand this story.
Until he does, he's just a fuckin' liar.

The Jan. 6 select committee has interviewed the top Secret Service agent on then-President Donald Trump’s protective detail during the Capitol attack, according to three people familiar with the probe.

I've yet to see this Committee make a statement, or ask another witness to make a statement on what she/he was told, that wasn't corroborated by other witnesses.  If Engel didn't confirm that story, I don't think they'd have asked Hutchinson about it.


Lord help us all!
Bret Baier and I agree on something! It's a sign of the End Times!

Oh, I Think We Can

Even FoxNews is gobsmacked. On the other, other, satirical hand: I am a little curious about how much "good graces in Trumpworld" are worth, even in the "Trumpworld" market. Because Trump's loyalty all runs one way, and he can turn you into a liar and leaker who he never knew at the drop of a hat.

I am a little concerned that our frame of reference for reality in the West Wing is Hollywood Mafia movies.
Well, that's just because the future is impossible to predict! I still want my goddamned flying car! Alright, that is a frame of reference shift I did NOT see coming! The real change in frame is the death of the Voting Rights Act; all we're doing now is waiting for the funeral, expected shortly. 15th Amendment, we hardly knew ye (some amendments are more sacred than others).

Your Cousin From Naples Will Be There

Playing One On Twitter

Jonathan Turley doesn't know jack shit about this, which makes you wonder why he's opining as if he does.

The testimony was that Trump was told they didn't have the clearance to go to the Capitol, they had to return to the West Wing.  The POTUS is not the ultimate power who does as he pleases.  He is the Head of State. The responsibility for his security does not fall on him, but neither can he push it away so he can go to the mall, if he wants to; or to Coney Island in the summer.

It's really not that complicated, and I don't even have to pretend I know what the law is supporting my argument.  Although I'm quite confident it's there, or the Secret Service is virtually toothless.

Holy Shit 💩

There's a Go Fund Me account to pay this guy to punch Trump in the face at that moment. 'Course, first we need one to build the time machine.... It's also all they've got. Well, it's good for the narrative. Meanwhile, how you know it's bad: Her office was steps away from the Oval Office in the West Wing. She testified that Giuliani told her Trump was going "to be big" on January 6th, and big things were going to happen at the Capitol that day. Why was Rudy talking to a "flunky"? I'm only surprised FoxNews didn't mention "hearsay." In our beginning, is our end.

The Theologian In Me…

...thinks this (too) is a terrible use of prayer. The “Our Father,” after all, is a prayer of humility. It’s a prayer offered voluntarily, not under compulsion. It isn’t “magic words,” that compel salvation or piety. Spoken outside a community of faith they may not even make sense. Spoken within one they may mean one thing to one community, something else to another. The universality of the King James Version can make it just sounds. I mean, who uses “art” as a form of the “to be” verb anymore?  Is it the words that matter? Or what they mean? The former explanation is just magical thinking; the latter is much closer to wisdom. But "what they mean" depends on what they are, doesn't it?

We'll consider that question in a moment.

Any coercion used for prayer, is a terrible use of prayer. And yet, a fine example of the distinction between wisdom, and religion. Try to imagine wisdom being coercive; and yet, religion?

Wisdom is not distinct from religion, nor should it be. But coercion is the wrong direction from wisdom. It’s away, not towards. 

Added irony:  Matthew 6:5-15 is Jesus instructing his disciples on how to pray.  Do it in private, he says, not in public like the "phonies."  His advice on prayer leads quite smoothly into how to pray.  The answer to that question is:

Instead, you should pray like this:

Our Father in the heavens,
your name be revered.
Impose your imperial rule,
enact your will on earth as you have in heaven.
Provide us with the bread we need for the day.
Forgive our debts,
to the extent that we have forgiven those in debt to us.
And please don't subject us to test after test,
but rescue us from the evil one.

Matthew 6:9-13, SV

Just that shift in the line about "debts" clarifies the meaning of the KJV, which, in its day, was the common tongue.  It was also Early Modern English, a language of English none of us speak anymore. The line puts us in communion, in common purpose, with everyone else.  "Lord, when did we see you?"  "When did you not?," is the answer.  To the extent you forgive, so will you be forgiven.  Oh, not by God; by others.  Step away from the circle of judgment.  Step out of the cycle of debt and recompense.  Take these words as directions for how to live (wisdom), not just words reflecting doctrine and soteriology (religion).

So, as I say, which version today (KJV, SV, other) is "orthodox"?

And since we're doing this in the context of recent Supreme Court decisions, one has to acknowledge this pretty much flows from Gorsuch's majority opinion on the praying coach:
Allthough I will say it's my understanding Islamic prayer is either corporate or private, and seldom, if ever, done on the 50 yard line of a football field, after calling TV stations to come watch.

So, you know, there is that.

I Can’t Even…

All those years I was told Scalia was “the smart one.”

Notes Toward A Conversation

(This grew, or more accurately, accreted over time.  I was going to try to shape it into something sensible, but then I gave up.  Consider it another entry on the theme of "wisdom" v. "religion," and how we should restore the former to, and so elevate and improve, the latter.  Then again, consider this entire blog a commonplace book; or a notebook of my scribblings.  Whichever helps it make more sense.) I get the legal argument here, and find it sound and well-reasoned. But I’m also interested in the doctrinal/theological argument (made by Blackman) that only “traditional” religious believers are “real” believers.  Which, as Schwartzman points out, is not a legal tenet or element of analysis at all.  But it's very disturbing in its own right.

So this is not the core of Schwartzman's argument: But it is the part that's most interesting to me.

It's actually a commonplace in the public narrative about religion in America.  "Real" believers align with the Southern Baptist Convention or Jerry Falwell or Billy (if not Franklin) Graham.  Christians in particular (the argument in the tweets is about Jews and Judaism; I'm not slighting that, just speaking from my knowledge/experience) are treated as "legitimate" so long as they are "traditional."  So the US Conference of Bishops gets more credibility than, say, Sr. Helen Prejean, who is both more "liberal" and, to boot, a woman.

"Liberal" denominations like the United Church of Christ aren't even on the radar.  Fights over recognizing gays get attention (it has flared up again among the Methodists, I heard recently.  A news story, not some insight from a friend in that church).  Acknowledgement of the legitimacy of gays as people, as in the UCC, gets no attention at all (no dog bites man story to report, eh?).  But denominations like the UCC also aren't quite "legitimate," because they don't practice some form of discrimination against others or just "the world."  As an example of the latter:
You can find the background for that story here.  I just picked it up because of the language of "secular combat rhetoric."  There is a place for the language of the church in such discussions; especially in reminding everyone involved they are sisters and brothers in Christ.  But drawing a sharp line between "church" and "world" and wielding that distinction like a club is very characteristic of "traditional" religious practice, even when its not traditional Christianity.

"Traditional," in other words, actually means "aligned with the world."  The pastor who sparked that controversy in the SBC was speaking against some SBC pastors and churches which lined up behind Trump, and put fealty to Trump above, in his perception, fealty to the Gospel of Jesus Christ.

However, in the world "traditional" means "aligned with Christianity."  But only certain kinds of Christianity:
I especially like the idea that the legal concept of "substantial burden" was created in the context of Christian faith, and Jewish faith is different because it "does not actually impose any requirements on congregants, but instead only offers aspirational principles." I don't even know where to start with that.

And, of course, "free exercise of religion" only means the religion of the "observant and orthodox."  What they observe, or are "orthodox" about, is assumed to be only "conservative" Christianity, with an emphasis on hell, damnation, and salvation, after which your primary task is to "save souls." Oh, and live a "Godly life" according to Victorian or even racist principles.  Jerry Falwell was very concerned about preserving the "Moral Majority."  He was also very concerned about maintaining white supremacy.  So go ahead, tell me I'm wrong.  Being anti-abortion is presumed to be the "orthodox" Christian position.  But orthodox according to whom?  Few of the mainline Protestant denominations are as anti-abortion as either the Catholic church or most fundamentalist denominations.  Which group is "orthodox," and which is "heterodox"?  It's kind of like Annie Dillard's observation that "far away" and "off the beaten track" are entirely a matter of perspective.  What you consider "off the map" is what someone else considers "home."

And again, the question of orthodoxy:

And when you pray, don't act like phonies. They love to stand up and pray in houses of worship and on street corners, so they can be seen in public.  I swear to you, their prayers have been answered! When you pray, go into a room by yourself and shut the door behind you.  Then pray to your Father, the hidden one. And your Father with his eye for the hidden will applaud you.

Matthew 6:5-6, SV*

This question of orthodoxy is a vexing one.
And the primary question is:  who is the Supreme Court to decide it? Granted, the distinction there is a theological one, but that’s the point. What’s considered “orthodox” is often defined by the world’s understanding, and that’s the wrong yardstick. In this case, it’s not just that Gorsuch’s opinion denies the facts of the case, it’s that the coach was being orthodox in the eyes of the world, but wholly unorthodox, even contrary, to the Gospel. But which is approved by the court as a religious practice? And why is the court approving at all?

Professor Vladeck asks as an observant Jew. I ask as an observant Christian. We are asking the same question, because it't not really an issue of which religion (Judaism, Islam, Christianity, etc.). It's a question of which orthodoxy? Who decides that?

*There is a great deal of wisom there; but not much support for "religion."