Friday, July 07, 2023

“And No One Noticed”…

...is doing a lot of heavy lifting here.
Posted by at No comments:

“But Sir, You Are ‘The Man’”

I saw this (but didn’t want to sign up to read it; who needs so many “subscriptions”?) and just thought it was somebody else being cutely contrarian. 

This argument reminds me of an ad from decades back: a white haired CEO and his much younger aide are discussing the advantages of whatever the ad was selling, and the CEO declares his consumer choice to be “Just my way of sticking it to ‘The Man.’” To which the astonished side replies:…well, you’ve read that line already.

So, yeah:
To be clear, Kapur’s argument is based on DeSantis’ (who overlooks the fact he’s a worse political candidate than Hillary Clinton). Maggie's point is the more salient one; Trump’s base are the crazies who think “the establishment” (the ‘60’s term that has swung from radical left to radical right) is the problem, and with just a few more crazies, a la the House, they’ll run everything and finally get their way and they can “stick it to ‘The Man.’”

But if you treat Trump as the new boss, same as the old boss…

The first step toward defeating Trump within the GOP (not in the general!) would be to treat him as the party leader. As long as he’s the failed president/candidate who should be in the wilderness (again, the most recent example is Hillary Clinton), he’s still the outsider attacking the party establishment. But treat him as the new party establishment, the leader of the GOP, the guy in charge… he might start losing his luster.

Chris Christie is sort of doing that, but he’s beating up Trump for being Trump. Democrats like it, but Trump’s base isn’t listening. You want to separate Trump from his base in the GOP? Treat him like he won the fight to control the GOP; because he did. Treat him like he’s the GOP establishment; because he is. And how’s that working out for you?

Not that that’ll happen; nor do I really want it to. First,  it’s not perfect. MAGA heads simultaneously think Trump did everything he set out to do, and that nothing Trump did lasted beyond 2020. It’s a child’s view of reality, and a child’s demand everything please them, even when they don’t know what pleases them. It’s Michelle Bachman insisting American slavery was not sinful; well, not at first, anyway.
It’s a child’s simplicity, and a child’s ignorance. But that’s why you could turn it against Trump.

Personally, I’d love to see Trump v. Biden again. I expect it to be Nixon v. McGovern redux. People forget Nixon wasn’t all that popular in ‘72, but McGovern provided him the perfect opponent for an incumbent to roll up the country. (Trump did as well as he did in ‘20 because he was the incumbent. Biden has that high ground now.) Not to mention sauce for the goose is sauce for the gander. Trump thinks his indictments make him stronger with the base. But that same base wants to impeach Biden. Which would only boost Biden in the general election. Besides the fact trying to do Trump’s bidding in such things proves he’s the establishment now. And not voting for impeachment proves you aren’t with the GOP establishment….

A clever GOP candidate could have a lot of fun with this. Not that I’m weeping while the GOP continues purging…
Posted by at 1 comment:

Thursday, July 06, 2023

James Carville Is Never Gonna Live That Line Down, Is He?

Which is the parody? Or is it either/or?
Posted by at No comments:

“Mamas For DeSantis”?

If I hadn’t read it, I wouldn’t believe it.

You know, Republicans have run down the electoral system so hard they are suppressing their own voters. Stuff like this makes me think they’re aiming for voters who don’t know even what voting is.

“Mamas for DeSantis”? Who the hell is that supposed to appeal to?
Posted by at No comments:

Does Anybody Believe…?

...Donald Trump knows the location in the East Wing where this dime bag was left? That he could locate it in a map of the building if you put a big, red “X” next to it?
Posted by at No comments:

This Will Only Work…

...if Threads sucks as badly as Twitter.

Besides, they didn’t threaten BlueSky. Of course, Elmo didn’t challenge Jack to a cage match…
Well, it’s not like Facebook is a demi-paradise.
Posted by at No comments:

Or Not.

Hopefully Nauta’s legal advice is at least better than this. When you’ve been charged under the Espionage Act, the PRA isn’t a defense. Period. Nauta can’t remotely claim the false protection of the PRA. Facing prison time might well change his mind about who to protect.

Or not. 
Posted by at No comments:

This Demi-Paradise

I know, I just used this tweet; but bear with me.
When it comes to Twitter, I always said of the platform; “Twitter is where civility goes to die.” I have yet to find anyone who disagrees with that assertion.
As the kids say: “No notes.”  Of course, that’s not all.
It now appears that the platform itself will die as well. Hear me out here. Its impending demise is obviously one part Elon Musk, however, it’s also many other parts that Elon Musk now has a say over. To be clear, Twitter itself could live on for years as a website and app people can visit and use. What will die were the intentions of well-minded people trying to make Twitter into something it could never be; a place for open, honest, intelligent, and rational discussion or debate. If Twitter were a horse, Musk just shot it in the leg with a rather large gun.
A place open to all and limited to 140 characters? How could it not be the reincarnation of the agora in Athens?

The article goes on to argue Twitter coulda been a contender for the resurrection of the New England town hall, complete with civil discourse and “rational discussion.” Except there are reasons that model never worked outside the small villages of “quaint” New England. Small, homogeneous groups (economically, socially, racially) can function optimally as a governing body (somewhat). I’ve seen church meetings of the membership (seldom held more than once a year, for good reason) turn “uncivil” in very short order, so I don’t harbor delusions of “civil discourse and rational discussion.” I’ve also spent too much time in academia, where civil discourse and rational discussion brings out the long knives. All very civilized, of course.

There is no Eden, no demi-paradise, no forum untouched by human ego and emotion. Open, honest, intelligent and rational is someone else’s closed, dishonest, stupid, and irrational. The only real difference is the power differential.  Stewart Rhodes thinks he was railroaded by the “Deep State,” not by a rational legal process and open and honest discussion of the jury. The power of the state alone overrides his paranoia, but it doesn’t changed his mind.

Besides, Twitter was accessible to everyone with an internet connection. Which is to say: people. And people all have a different idea what “open, honest, rational and intelligent” means. And others always think that’s never achieved because they don’t agree on those terms.

Nowt so queer as folk. Always. Everywhere.
Posted by at No comments:

Not So Fast

Not very well, no. "Drop-dead" deadlines have a way of being effective. Besides, there are many more procedural obstacles to a trial than Trump’s weak foot-dragging on securing counsel for his co-defendant.
Posted by at No comments:

All The Vital Information That Fit…

...into 140 characters.

Short attention spans and the brevity necessary to brief Donald Trump are not hallmarks of societal progress.

Just sayin’…
Posted by at No comments:

Wednesday, July 05, 2023

May You Live In Interesting Times

I don’t know what in the name of glory is going on here, but I think this entire post (for context) should be publicized as widely as possible.

In about a year’s time. Probably by a super PAC.
No doubt Hunter went through there to get to the residence.

And in movie news: apparently the “Fleabag” audience did not breathe new life into (or overlap much with) the Indiana Jones audience.  That, or people are tired of Nazis.

(I saw one episode of “Fleabag” once. I didn’t feel like I’d missed anything. But I’m also through with Indiana Jones v. the Nazis.)
Posted by at No comments:

I’m Pretty Sure Parody Lost Out To Reality This Time

Posted by at No comments:

Can We Bury This Now?

The plaintiff says, contrary to the New Republic article, that the sham client story came from an e-mail sent to her after the case was filed. True or false, nothing much came of it.
The federal judge who initially ruled on the case, Marcia S. Krieger, brushed off the relevance of the email in her decision, saying that "it is not clear that Stewart and Mike are a same-sex couple (as such names can be used by members of both sexes)." 
Krieger found Smith had standing to sue regardless but ruled against her claims. Smith appealed to the 10th U.S. Circuit Court of Appeals, which also found she had standing but rejected her legal challenge. 
The appeals court found Smith and her company had "sufficiently demonstrated both an intent to provide graphic and web design services to the public in a manner that exposes them to [Colorado Anti-Discrimination Act] liability, and a credible threat that Colorado will prosecute them under that statute." 
In his majority opinion, Gorsuch cited the appeals court's finding on standing and wrote that "no party challenges these conclusions." 
He also found that Smith "had established a credible threat that, if she follows through on her plans to offer wedding website services, Colorado will invoke CADA to force her to create speech she does not believe or endorse." 
In a sharply worded 38-page dissent, Justice Sonia Sotomayor called the ruling "heartbreaking" and said it was part of “a backlash to the movement for liberty and equality for gender and sexual minorities” and a type of “reactionary exclusion.” 
One thing Sotomayor didn't mention, Whelan noted, was any concern about Smith's legal standing to bring the case in the first place. 
"Every justice agreed," he said.
Now maybe we can focus on the Court’s problematic legal reasoning.
Posted by at No comments:

If Trump Had Said This…

...it would be written off to his megalomania; rather than taken seriously.

It still shouldn’t be.  Twitter was never that important. It’s users just thought they were.
Posted by at No comments:

L’etat, C’est Moi

MASSIVE PROSECUTORIAL MISCONDUCT IS CURRENTLY TAKING PLACE IN AMERICA," he wrote. "THE WEAPONIZATION OF LAW ENFORCEMENT CANNOT BE ALLOWED TO HAPPEN. CRIME & INFLATION ARE RAMPANT, OUR BORDERS ARE OPEN, OUR ELECTIONS ARE RIGGED, OUR ECONOMY IS IN SHAMBLES, OUR ENERGY INDEPENDENCE IS GONE, OUR 'LEADER' IS MERCILESSLY MOCKED, & OUR COUNTRY IS BEING DESTROYED BOTH INSIDE & OUT. DO THE PEOPLE OF THIS ONCE GREAT NATION EVEN HAVE A CHOICE BUT TO PROTEST THE POTENTIAL DOOM OF THE UNITED STATES OF AMERICA??? 2024!!!"
Or maybe it’s because he can’t play golf at night. Although there is good news: But Dems remain in disarray, so there’s still a horse race to report on: Oh, wait…
Posted by at No comments:

Twitter Agonistes

Now that Elmo has well and truly run Twitter into the ground, the encomiums and eulogies burst forth forth like flowers in the spring.

“Twitter we hardly knew ye…”

And it’s all, as Charlie Pierce likes to say, my balls.

I’m not “on” Twitter so all the recent rate limits don’t affect me. I don’t tweet, I just exploit the platform. I do most of these posts (like this one) on my phone. Embedding tweets is easier than typing with my index finger on a virtual keyboard (as my frequent typos attest). But I don’t follow anybody and I don’t care about “blue checks.” I’ve also never been impressed with the intellectual heft of Twitter, aside from one or two threads I keep a tab open for on my phone browser. Because once you get beyond the decent tweet, the replies read like this real fast.
I’m pretty sure there’s more of Twitter carrying on conversations like that, than conversing at the level of the people I regularly embed. I’ve ventured into the replies. They go “Heart of Darkness” real quick, and that was true long before Elmo took over and championed fascist racism.

You see the effect of that on some threads and not on others, at least the threads I regularly read. And most of the effect I see is the people looking for these tweets, v. the people not looking. Twitter was never the agora of ancient Athens nor the salons of 19th century Paris (which were only spectacular in memory and absence anyway). Twitter was always a few thoughts worth considering in a sea of shit. That’s the norm for human history. If you thought everybody in late 18th century America talked like Jefferson and Franklin on their best days, I’ve got some prime swamp land to sell you. Trust me, you’re gonna love it!

David Frum’s metaphor is that the wrong people are in the bar now; that the neighborhood isn’t what it was and the “wrong people” are in the ascendancy. The racists and fascists do seem more abundant, and many of them have been allowed to return thanks to new management. But that’s more akin to convicts who served their time returning to society than it is bikers taking over the malt shop.

Mostly the people who are here dealing in opinion seem upset by things. Popehat decamped to Bluesky, but some Twitterati think BlueSky will go the way of Twitter as surely as sparks shoot. Or maybe because Jack thinks Elmo is doing his best. Or maybe because that’s the nature of internet fora: bad money drives out good, and thoughtless commentators drive out thoughtful ones, whatever the platform. The history of social media, after all, seems to be the churn of old platforms abandoned for new, which are always shinier and don’t have all these “trolls” infecting everything “here.”

Nah; it’s probably all Elmo’s fault. He’s the cause of the collapse and fall of Salon’s “Table Talk” in the ‘90’s, and then of Facebook, and the reason Blogger became such a bad neighborhood everyone went to Twitter, and now…

Yeah, that’s gotta be it. Damned barbarians always come along and ruin it for us civilized people who alone appreciate the finer things in life. Damned barbarians.
Posted by at No comments:

Where Is DougJBalloon When You Need Him?

Posted by at No comments:

Tuesday, July 04, 2023

Math For Simpletons

The town where Trump held his rally has a population of about 3,000 souls.

Trump claims 75,000 came to his rally. For comparison’s sake, Memorial Stadium at UT-Austin has a capacity of north of 100,000.


Yeah, it’s pretty damned big.  The enrollment at UT Austin is about 50,000, and few students get into the games because they can’t get tickets. Most tickets go to alumni and season ticket holders. Which means if the stadium is full, most of those people are from out of town.

Which you barely noticed, when I lived there. At the time Austin was about 500,000, so another 100,000 or so didn’t represent a 2500% increase in the city’s population.

Which brings me to my point. I don’t know many cities have a public arena built to handle 25 times the population of the burg. It just isn’t believable.

I appreciate the Secret Service providing a more reasonable estimate of 5,000 (still seems high, though; considering). But on the face of it, 75,000 is just impossible.  Not to mention, unbelievable.

I bring this up because:
Yeah, he really has the most tenuous connections to reality. As if everything since 2016 hadn’t taught us that; or everything since November 2020 didn’t drive the point home with a 10 lb. sledgehammer. Yeah, but the Elvis obsession still wins the weirdness contest.
Posted by at No comments:

Deja Vu All Over Again

Did I fall asleep and wake up back in the ‘70’s? Because it’s deja vu all over again.

Just remember white is not a race, so it cannot discriminate against races, but can only be discriminated against.
Joy-Ann Reid went to Harvard because she was smart, had the grades, and a Harvard recruiter came looking for her in Denver. That was affirmative action. George W. Bush was a legacy, because his family was white and rich and could accumulate wealth people who look like Ms. Reid were legally incapable of doing. The Tulsa Massacre was in 1921, after all. The Tuskegee Experiment ran from 1932 to 1972. None of this is pre-Civil War history, IOW.

And the ‘70’s were the decade of the great push for affirmative action. Tuskegee ran for 40 years. The Tulsa Massacre was so buried in history it was this century before it became widely acknowledged.

But affirmative action is discriminatory and cannot be tolerated and so must be ended. Sure; why not? After all, it affects white people, and we adjudge it affects us adversely.

Can’t have that, can we?
Posted by at 2 comments:

Reality Sux.

😹😹😹😹
Posted by at 1 comment:

A Lie Is Halfway Around The World…

...while truth is still putting its boots on.

(The worst part is the distraction this fiction is from the holding and its potential consequences.  Even if the fiction was true, the holding stands. That’s the real problem.)
Posted by at No comments:

🇺🇸

🎆🧨🎇
Posted by at No comments:

Fourth of Jooly 🇺🇸

A perennial favorite.

And the new stupid:
Posted by at 1 comment:

His Public Legal Defenses Are No Better Than This

And I’m really struggling to see how this appeals to the broader electorate beyond GOP primary voters. Still complaining about 2020 and now it’s because of hats?

Yeah, this’ll bring the election right down to the wire…
Posted by at No comments:

The REAL “Standing” Issue

In contrast, the “conservative” victories were enormous. Gutting race-based affirmative action in higher education, recognizing for the first time that certain business owners have a First Amendment right to refuse to provide services to members of groups whose behavior they oppose, tossing President Joe Biden’s student loan debt relief program in a ruling that will make it easier for anyone going forward to challenge a dizzying array of federal policies, and the list goes on.
Donut. Hole. Clueless idiots chasing the wrong damned thing.
In the end, assessments of the Supreme Court’s work during its current term should privilege what the court has actually done (and not done) over how its efforts are superficially (and misleadingly) quantified through incomplete, inaccurate and ultimately unrevealing data. And when that’s the focus of our study, what becomes clear is just how powerful the six-justice conservative majority is — and just how significant its implications are for the current and future trajectory of American law.
True not just for statistical analyses.
Posted by at No comments:

“White” Is Not A Race

Once you’re “white,” you’re safe . Until then…
Posted by at No comments:

And People Say God Doesn’t Have A Sense Of Humor

It’s just a question of who’s the butt of the joke.
Posted by at No comments:

Monday, July 03, 2023

Please Make It Stop

Maybe it’s being on TeeVee that makes you stupid.
"But it would be a mistake to let that obscure the central fact that the entire case was based on entirely hypothetical 'worries' that the web designer claimed to have about how the state's officers might come after her under the state anti-discrimination laws if a same-sex couple were to ask her to design a wedding site for them and if she were to refuse," Tribe said. "In my view, the disgraceful fact, which in no way depends on the falsity of the allegations about the fellow who supposedly asked Lorie Smith to design a website for a same-sex wedding, is the very fact that the Supreme Court's majority was willing to render what amounted to an advisory opinion that it would never have done but for its eagerness to denigrate same-sex marriage and LGBTQ rights generally and that, under Article III, it had no business doing."

Except it wasn’t built on that. Oh, it was according to “The New Republic,” but I’d like to think Tribe knows better than to rely on a magazine article for a legal opinion.

But maybe that’s what TeeVee lawyers do. In the Slate article:

I think this is a nonstarter," former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. "The Court glossed over standing in this case because a plaintiff is permitted to make a facial challenge to a law on the ground that yet violates the First Amendment." 
"If the allegations about fabrication are true, then the lawyers may have an ethics problem to address with their state bar, but it will not affect the outcome of the case," McQuade added.
I don’t think the Court “glossed over standing” here, precisely because the plaintiff was permitted to challenge on First Amendment grounds without showing a concrete injury. And again, if the dissenting justices didn’t notice this problem, maybe that’s because it isn’t there?

Nah! How could all those judges and justices not know what a magazine writer did? Clearly the superior authority on the facts and law of this case is a non-lawyer reporter. Even Lawrence Tribe seems to think so.

Some day we’ll talk about the actual holding of the case, and its affect on public accommodation law. We just won’t do it with TeeVee lawyers.
Posted by at 1 comment:

It’s Not Complicated

Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

But please, continue to engage in still more punishment theater.  It’s working out so well for you and GOP.

Posted by at No comments:

Tell Me About It 🌳

The Golden Child is 31, and I’m not sure she knows Bob Hope was.

If she knows who Bing Crosby was, it’s because I have a Xmas tradition of watching “White Christmas” on Xmas Eve.

The older you get, the more you realize how much information is relegated to “history,” and how information is lost because it never gets relegates anywhere.

Sometimes it is a wonder tall trees ain’t layin’ down.
Posted by at No comments:

😎

Merle Miller, who chairs the Washington County, Iowa GOP, told The Messenger, "The majority of Republicans here are for Trump after this frickin' legal lynching. That's all it is…. People here take the indictment personally. I think if they wouldn't have done this thing and try to prosecute and persecute him and drag this guy through the mud like they've been doing for seven years, that it would be different. But people are mad." 
Between special counsel Jack Smith's 37-count federal prosecution for the U.S. Department of Justice (DOJ) and Manhattan District Attorney Alvin Bragg, Jr.'s 34-count case for New York State, Trump is facing a total of 71 criminal counts. And his efforts to overturn the 2020 presidential election results are the focus of investigations by Smith and Fulton County, Georgia District Attorney Fani Willis. 
The Messenger's Marc Caputo reports that Kelley Koch, who chairs the Dallas County, Iowa GOP, is also seeing a surge in support for Trump among Republican primary voters.  
Koch told The Messenger, "What I'm hearing in my county is that it's basically all in for Trump…. They poured a ginormous jug of diesel fuel on a bonfire, and people are fired up. They stirred people that normally would not be stirred right now. People are starting to identify with what Trump is going through."
Also The Messenger: And speaking of same energy: And Republicans are a distinct minority of voters.
Posted by at No comments:

And He Stayed At A Holiday Inn Express

He wasn’t a lawyer on the case, nor a judge or justice at any level, trial to appeal. He hasn’t read all the briefs nor the pleadings nor the opinions of the Court.

But he read a WaPo article. On Twitter, that makes you the supreme authority.

🤦🏻‍♂️ 

Same energy:
Posted by at 1 comment:

Guilty Dog Barks Loudest

Justice hurts.
Posted by at No comments:

Sunday, July 02, 2023

Irony Is Laughing Its Ass Off

Turns out the Twitter obsession with the legal doctrine of standing was focused on the wrong case 
From the first page to the last, today’s opinion departs from the demands of judicial restraint," Supreme Court Justice Elena Kagan wrote. 
"The author of today's opinion once wrote that a 1970s-era standing decision 'became emblematic' of 'how utterly manipulable' this Court's standing law is 'if not taken seriously as a matter of judicial self-restraint,'" Kagan continued, referring to Roberts in her dissent. "After today, no one will have to go back 50 years for the classic case of the Court manipulating standing doctrine, rather than obeying the edict to stay in its lane." 
She went on to say that whether the executive branch overstepped its bounds "does not license this Court to exceed its own role." 
"Courts must still 'function as courts,' this one no less than others," she continued. "And in our system, that means refusing to decide cases that are not really cases because the plaintiffs have not suffered concrete injuries."
Which, among other things, proves the justices are perfectly capable of describing a standing issue when it arises. Which should be a lesson to the legal brain trust of Twitter, and the lawyers who make a living having something to say on TeeVee, even when they don’t know what they’re talking about (Neal Katyal is damaged goods IMHLO).

I may disagree with the legal reasoning and how the majority reaches its conclusions (especially in this case; read the rest of the article), but the Justices do know the legal issues of the cases before them better than the Monday morning quarterbacks who can’t even be bothered to read the opinions.

I think the Twitterati missed this because it wasn’t pre-explained (badly, wrongly) in a magazine article. But here is the standing case they are looking for.

Funny they can’t understand that.
Posted by at No comments:

And While We’re Arguing Legal Opinions…

....without the burden of studying the case law or the opinions:

A) Can you identify where in the majority opinion they make that an explicit basis for the result? (Just because it was in the record doesn’t mean the court found it dispositive.)

B) Accepting that fact claim arguendo, what is the legal argument for Harvard’s actions as alleged necessitating the end of affirmative action in college admissions?


(I’m going to spare you the discussion of standing and Creative 303 George is hosting at his Twitter feed. You’re welcome.)

(Although there are STILL some who haven’t read that case:
1 is correct. 2 is dead wrong. Most of the dissent in Creative 303 is spent shredding that argument, based on precedent, like a paper shredder. It’s entertaining, if your inclinations run that way.)
Posted by at No comments:

Oh, God; Please Don’t

I know, I know: where’s the dead horse GIF?  BUT THIS IS NOT A SCOOP! Not even of ice cream! 🍦 The “New Republic” article is dead wrong on both the facts and the law!

This issue comes to us through, IMHO, the confluence of Sotomayor’s dissent, and a publicity stunt by the people paying the plaintiff’s legal fees (a la, frankly, the Scopes monkey trial. Seriously. It’s a long tradition.) The case was lagging in the trial court (IIRC from the article) so a story was put into the record, and then reported via press release, about this person who actually exists but didn’t actually seek services from Creative 303 for…well, anything.

The lawyers for the plaintiff pressed this in the press; but not in court. As even the article recognizes, the trial court ignored this basically unsubstantiated claim (putting it in a pleading and presenting it as evidence in court are two very different things.) The “New Republic” says the alleged customer never even knew his name was in the court record. THAT MEANS HE NEVER TESTIFIED! Without his testimony (best evidence rule), this issue was never considered by the trial court.  OR ANY COURT THEREAFTER.

The “New Republic” acknowledges this, but says the unsubstantiated claim is still in the court record (true; because the court record includes all filed pleadings) and therefore through some mysterious process known only to non-lawyers who HAVE NO CLUE HOW APPEALS WORK!, somehow still affected the outcome.

Although this mysterious stranger and this truly fictional claim was never proved up in court, hence never presented in court, hence never considered by the appellate courts (who are bound to consider the record of the trial/final hearing, and not every damned thing alleged but never proven*), AND IS NOT EVEN HINTED AT IN THE MAJORITY OPINION NOR IN THE DISSENT!

Good Lord, people, learn to read!  Better yet, learn how the courts actually function!

This nonsense is precious little different from the idiot who killed himself and four paying customers beneath the North Atlantic, except no one will be killed by this ignorance. But, unburdened by useful knowledge, this article is convincing tout le internet that the most important part of this case is SOMETHING THAT NEVER HAPPENED!

Which is what the plaintiff’s lawyers were trying to do when they floated this into the press back when this case was in the trial court.

Well done, everybody. You’ve proven yourself all useful idiots. Golf claps all around. You’ve earned it.


*You know that favorite thing every TV show and movie loves to show? “I object!” You do that to “preserve error.” If you don’t do it, the appeals courts can’t “see” the error in the trial court, because you didn’t preserve it. Likewise if you don’t put on evidence in trial/at a hearing, even though you alleged it in a pleading, the appeals courts can’t “see” that, either.  

And Neal Katyal (don’t say I don’t cover my bases) should know better.
Posted by at No comments:

No, No, No!!! INFLATION!!!!!

It’s so much easier to talk about what didn’t happen: I’m not beating that dead horse anymore but, but Jiminy Christmas, now it’s slipped the surly binds of Twitter and wandered into traffic of the real world with the AP.

No one is ever going to pay attention to what that decision actually did. Dammit. 😤  As I was saying about fixing stupid…
Read this article yesterday. Short version: that submersible was not. It was the product of an ignorant egotist who thought that made him smarter than people who actually knew the engineering principles involved. Sound familiar? I’m not even sure that’s the issue. You’d think people would actually read the opinion and the dissent. But I guess that’s expecting too much; especially on Twitter. Oh, good, now Peter Baker’s weighed. Still wondering which is more important: raw number of cases, or the number of consequential cases?

As I was saying, Twitter is not where you go for reasoning, sound or otherwise.
Posted by at No comments:

You Can’t Fix Stupid

I’ve known lawyers who were idiots (Trump has hired several, though none of them lawyers I knew).

And Twitter is a poorer educational tool than television is.  Anytime I dive into the replies to any tweet, I despair at the base ignorance and utter inability to reason on display.

You really can’t fix stupid.
Posted by at No comments:

Lies, Damned Lies, And…

It's the cases where Thomas and Alito were with the majority that matter more than the bulk number of cases. The consequential cases (in affirmative action, on public accommodations) matter far more. 
Posted by at No comments:

“It’s Origin And Purpose Still A Total Mystery.”

"2001: A Space Odyssey”

Runner up: “The Red Balloon.”
Posted by at 1 comment:

Please, Please, PLEASE! Let Him Testify In Florida

Pkease! I’m begging you! And in Georgia, too! The mystery of how Raffensperger in Georgia taped a call Trump made to him from the White House, in Florida, must be solved! WHISTLEBLOWERS! WHERE ARE MY WHISTLEBLOWERS?!??
Posted by at No comments:

Watch The Donut 🍩

Not the hole.

To begin with, this is some Donald Trump level “LOCK ‘EM UP!” shit.
Yeah, that’s still a thing with them.

When the dissent in 303 Creative noted that the plaintiff had never created a wedding website but sued anyway, that was background to the argument that “expressive content” was not an exception to public accommodations law. The plaintiff argued “expressive content “ gave her grounds to seek constitutional protection in the face of statutory law. The dissent is arguing that legal issue, not the question of standing. It’s a nuance perhaps only a lawyer can appreciate, but the facts here don’t raise a standing issue. The legal issue is whether “expressive content” carves out an exception to settled public accommodations jurisprudence. The majority, following in the footsteps of Dobbs, says: “Sure, why not? We like that outcome, and we’re the Supreme Court, bitches!”

That surge of confidence you felt after Allen v Mulligan? The Supreme Court just took a shotgun to your balloon. 303 Creative is such a radical departure from precedent it might as well be the palimpsest to Dobbs. And Allen might as well have come from a different court altogether.
Consider it the bone the majority threw to its critics so it could go back to taking a wrecking ball to whatever law and precedent it doesn’t like. A feint for the legitimacy they are busily shredding everywhere else.

And Twitter wants to chase the Trump shit of “Fuck the law! We’re pissed off and somebody should pay!”? Fuck that. Might as well say we’ll let ‘em get away with it while we engage in public petulant childishness. “Well, they get to do it! It’s not fair that we can’t!”

Grow up. The problem here is the trampling of public accommodations law, and the hole the Court just blew in the Civil Rights Act. That ship is taking on water and you want to complain to the captain about how the steward didn’t put enough sugar in your tea. 303 Creative is a trampling of precedent second only to Dobbs which raises “creative expression” (whatever the hell that is) to the level of Hobby Lobby’s “sincere religious belief” (whatever the hell that is. And I say that sincerely, since courts are not allowed to inquire. I expect the same will be true for “creative expression,” which somehow is speech and not conduct, and so constitutionally protected, although prejudice against protected classes of persons is not. Really, take the time to read the dissent in 303 Creative, and stop this stupid jabbering. You’re chasing the wrong damned car.)

This is a very bad legal decision. The problems with it are not the ones being talked about on Twitter because those aren’t even problems at all. The Court will probably continue to carve out a little sliver of legal protection for race on some basis in some cases, but that’s not the comfort you think it is. At best it’s just a fig leaf for the other damage they’re doing. All of the VRA was based on correcting the sins of racism allowed even in the face of the 15th Amendment, and Allen just barely leaves that law with anything to do. Hooray? And when the Court sees a problem with racism, or how it sees that problem, is the real issue still facing this nation. The rollback of the legal progress since 1954 is proceeding apace.

Now the CRA is under assault, and tout le Twitter is complaining about how uncouth the plaintiff is.

Let me put it this way: in 370 days  the Supreme Court has trashed precedent in abortion law and affirmative action law (the latter, if you didn’t know, began in 1961 with an executive order by John Kennedy). And now public accommodations law precedent is swept aside like it never existed. And you want to complain about the application of an arcane legal doctrine you don’t even understand, and demand it be enforced by non-existent laws by government agencies with no such authority? Who are you, Gym Jordan and Jimmy Comey?

I’ll retire to Bedlam…
Posted by at 1 comment:

Feature, Not Bug

The whole point of HUNTER BIDEN’S LAPTOP! was to re-create Benghazi BENGHAZI BENGHAZI! Oh, and also to mimic “The (Mis)Adventures of Jared Kushner” as a sort of inoculation against him being noticed (and the MSM happily played along, because “objective journalism” is dutiful stenography, or it is nothing at all.).

And here we are. 
Posted by at No comments:

Now I Fear AI 😨

I’m pretty sure I saw this scene at some point in my Sixties childhood. Or in several movies. It was like stock footage for many bad movies.
Posted by at No comments:

Saturday, July 01, 2023

A Second Bite At The Apple 🍎

From state Attorney General Phil Weiser’s perspective, Smith’s business shouldn’t be treated differently than anything else. Any business could call itself a creative enterprise. A coffee shop could say the lattes it steams are creative works of passion. A tire repair business owner could say replacing tires is a passionate devotion to making people safer on the road. 
“You do get to define what your product is,” Weiser said. “Your product can be a book or a painting, but once you make your product you can’t discriminate against certain customers based on who they are. If you allow this loophole, thinking somehow this expressive interest exception is a minor exception, we are deeply concerned how this will run roughshod through the public accommodation requirements.”
I’m trying to figure out what’s wrong with that argument.

I have settled my mind about the argument that the plaintiff didn’t suffer harm. The fact is, she was operating “303 Creative” when she sued to enjoin Colorado from suing her for expanding her business into wedding websites in violation of Colorado law.

That gives her standing, is the long and short of it. The confusion on this point is what comes of commentary by non-lawyers.

But there’s a good question raised here:
In the end, it was Sotomayor’s flaming sword of a dissent that translated my perplexity into legal logic. She calls the argument that Smith’s business should be shielded from anti-discrimination law because it would be offering custom websites “wrong. Profoundly wrong.” Consider a company that does school photos, she writes: “It may not deny those services to multiracial children because the owner does not want to create any speech indicating that interracial couples are acceptable.” 
303 Creative could include whatever message it wants in wedding websites, Sotomayor points out. But, she notes, “the only thing the business may not do is deny whatever websites it offers on the basis of sexual orientation.”

 The majority says Smith (the plaintiff) wants to not speak, and Colorado wants to compel her to speak. I understand how refusing to speak can be protected by the Fifth Amendment. I confess I don’t understand how refusing to speak is protected by the First Amendment, especially in the arena of public accommodations law.

On that point, the court’s majority disagreed. So what now? How might this affect other protected groups — say, those interracial couples? “The majority notably does not attempt to cabin its opinion to same-sex couples,” Oleske wrote in response to my question, “and attempting to do so would contradict the free speech principles the majority cites.”
The defense of the majority I’ve read is that the ruling is limited to “creative acts.” Which doesn’t get around the public accommodations problem (area of law, I mean), so it’s not much of a defense.

I can only conclude the defenders of the majority opinion on Twitter (or in op-eds) have not read the dissent. They like the outcome, why bother with the details? (I include in this group George Conway, a lawyer who should know better than to argue his points so poorly. His defense is: “The court said it, I like it, that settles it!”) But Sotomayor’s argument is precisely that the majority ignores public accommodations law in a way that threatens the Civil Rights Act itself (well, they’ve gutted the VRA; time to move on; or backwards, chronologically).

Smith tried to hitch her argument to Hobby Lobby: she claimed a sincere religious belief protected her from a state law based on Federal law and settled(!) case law. Interestingly (or maybe the correct expression is: “Thank God!”), the Court didn’t even take that up. But she also claimed an exception to such laws based on the “expressive content” of her proposed new services. (Here Sotomayor references the fact Smith never tried to sell her new services, which calls into question whether the Court needed to hear this case. That statement is being misread as a tacit challenge to Smith’s standing But Sotomayor never makes that argument.) That, argues the dissent, is where the Court should have rejected the case. I tend to agree.

The crux of the argument is that matter of “expression.” The majority uses it to shoehorn this case under the protection of the First Amendment. But the dissent points out that, under the case law, the proposed behavior of the plaintiff is conduct, not speech; and under public accommodations law, that exempts it from First Amendment protection (because if that wasn’t so, all actions meant to avoid such laws would find safe harbor in the Constitution, and the CRA would be toothless).

The dissent carefully delineates the arguments and, more importantly, case law against the majority opinion. It’s no wonder the dissent is getting little notice. It’s really a quite devastating analysis of the case. Better to ignore it, if you like what the Court did. And the problem with this case is that it runs in the tracks laid down by Dobbs. Not in the legal arguments, but in the rejection of stare decisis. That is the slippery slope here. That is the danger of this opinion, second only to the danger this ruling poses to public accommodations law.

Standing is not the issue here. Don’t let that be the mistake made about this case. This case is walking through the door Dobbs opened. And that is the grave danger ahead: making the law what this Court says it is, despite what has been said in the past. That is a more grave threat to our democracy than Trump’s stupid bleatings.


Posted by at No comments:

The First Useful Lesson In Law School…

...is “Change the facts, change the outcome.”

The second useful lesson is that facts may direct, but do not determine, the outcome.

The third useful lesson is that non-lawyers are the most useless analysts of legal opinions.

Adding: 

I haven’t read French’s op-ed (paywall). I have read this one:
That story hovered in my mind Friday as I read the Supreme Court’s 6-3 decision in 303 Creative LLC v. Elenis. I thought to myself, not for the first time, “Maybe this would make sense if I had gone to law school.” Justice Neil M. Gorsuch’s majority opinion upholds the right of Colorado designer Lorie Smith to open a straights-only wedding website design business. For the state to restrict her from doing so, he writes, would violate her free speech rights under the Constitution. “Tolerance, not coercion, is our Nation’s answer,” he rather grandly concludes. 
If “tolerance” seems like an upside-down way of describing the latitude to refuse services to certain classes of Americans, it’s just part of a slick, almost surreal piece of legal writing that, for this civilian, could only be countered by blinking hard and remembering my real friends turned down by wedding venues.

You can read the red of it. As of the time of writing, at least, it’s free. And it’s more of a reaction than any attempt at apology for the legal reasoning. Which clears it of my third rule.

There is a rule of jurisprudence: that you cannot forget there are people involved, not just legal principles. You can’t set aside the law in favor of the person, but elevating the law above the persons is why English common law incorporated the principles of equity so long ago, the better to insure justice. Even equity is a set of rules (the plaintiff engaged them when she sought an injunction).  But it reminds the law there are people involved, and they are due consideration.

These are strange times, in which those of us without a legal background may watch our rights recede — as women, as people of color, as members of the LGBTQ community — without necessarily feeling able to argue back. We are left trying to make sense of arguments that appear to cut against common sense and common good. For the moment, all we can do is turn to those who do have that training — and speak up about the moments when, in the real world, people lose out on equal opportunity as a consequence of such decisions.
That puts it in a very neat nutshell.
Posted by at No comments:

“Thank You, Sir, May I Have Another!”

Trump is the nation. Lindsey betrayed it. 🤷🏻‍♂️  Trust Trump to be there with the shiv.
Posted by at No comments:

“And Then He’ll Make The Trains Run On Time!”

Posted by at No comments:

BUILD THE WALL! 🇨🇦

MAKE CANADA PAY FOR IT! OR JUST INVADE CANADA AND MAKE ‘EM RAKE THEIR DAMNED FORESTS! 🍁 
Posted by at No comments:

The Top Two GOP Presidential Candidates

The clueless fighting to the death with the ignorant.

May the dumbest person win.
Posted by at No comments:

How Long, O Lord, How Long?

There are those who are asking the devotees of civil rights, when will you be satisfied? We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. 
We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their selfhood and robbed of their dignity by signs stating: for whites only. 
We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote.
We’ve removed the signs and kept the sentiment. The Civil Rights Act of 1964 took care of the signs. The Voting Rights Act of  1965 took care of the vote. But we couldn’t have that, so the 15th Amendment gave way to states rights. The affirmative remedies of the VRA could not stand. And now neither can affirmative action. The more things change, the more they remain the same.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today.
Funny how context changes the character and meaning of misquote. Dr. King was not speaking in vague and glittering generalities. He was talking specifically about his children. Then as now whites judge blacks on the color of their skin; indeed, they still make skin color the content of their character. George Floyd. Black Lives Matter. That simple assertion outrages whites. Our character, we still insist, is pure. The character of nun-whites is still suspect.

We brought slavery to this continent when Columbus landed. We turned it into a business in itself. We built an international commerce in human beings. We even wrote it into our founding documents and our laws, until 1964. And yet we still can’t face that reality.

What King dreamed of still hasn’t come true. But white people absolve themselves of the sins of their history, and insist our evil has been undone in only 50 years. We defenestrate King’s words so we can feel better about ourselves. And then we insist any further correction of the evil we did and are heir to is a greater evil than ours.

We are nowhere near seeing Dr. King’s dream. We are moving in the opposite direction.
Tell me I’m wrong.
Posted by at No comments:
Subscribe to: Posts (Atom)