Douglas Moran's Open Salon Blog

Justice Scalia: Lazy, Hypocritical Douche

Fri, 30 Mar 2012 15:03:54 -0400

Photo courtesy of the Boston Herald (obviously!)

Justice Scalia has never been a particularly nice guy. He says that he's "an originalist", i.e. interpreting the Constitution based on his understanding of "the Founders' intent", but that's B.S.; when he has his own axe to grind (e.g., Bush v. Gore) he tosses his high and mighty principles to the side and rules according to what he wants, rather than the rule of law.

Consider my favorite, Lawrence v. Texas, where the court found that, no, states don't have a right to invade your private bedroom space and tell you how to be intimate with your partner. They don't have a right to say, "Yo, gay people: butt sex is yucky, and we're not tolerating it!" Nope; that was struck down.

But Scalia clearly feels that butt sex is very yucky--it says so in the Bible, he noted--and so the state does have a right to poke its nose into your most private, intimate business. But he is very clear to note that he's not homophobic. No sir! Some of his best friends are fags! He just thinks butt sex is yucky and should be outlawed, but he's no bigot, no!

Seriously.

That's hardly all, of course. One of the most egregious quotes by Scalia was about his decision to allow innocent people to go to death row. When someone asked him how he could countenance sending innocents to death he replied, "Mere factual innocence is no reason not to carry out a death sentence properly reached." So it doesn't matter that you were innocent; a court found you guilty, so time to die! (How he squares that with Catholicism, I have no idea.)

So in my opinion, the perception of Scalia as a short-tempered, grumpy old hypocrite is absolutely correct. Look at the photo above. The story behind it is that a reporter had the temerity to ask Scalia a question, and so Scalia made that gesture and noted to the reporter that it means "blah", which (depending on what source you check) is Italian for "fuck you.". He is, in other words, flipping someone off/cussing them out just for being asked a question. (The Supremes usually hide from that.) In short, he's being a douche.

But here's what got me particularly irked:

JUSTICE SCALIA: Mr. Kneedler, what happenedto the Eighth Amendment? You really want us to go through these 2,700 pages? (Laughter) And do you really expect the Court to do that? Or do you expect us to -- to give this function to our law clerks? Is this not totally unrealistic? That weare going to go through this enormous bill item by item and decide each one?

Look: the entire job of the SCOTUS is to look at the list of laws that has been submitted to them, decide which ones they're going to adjudicate and which ones they aren't, and then render judgements on those they've decided to take on. That's all they're supposed to do. That's their entire job, their raison d'etre.

And now comes Scalia, and he says that it would be cruel and unusual punishment (the 8th Amendment) to do his job. Yes, Tony: you are supposed to read the whole thing, item by item, and render a judgement as to whether it's consititutional, you lazy, arrogant jerk. That's what the SCOTUS does. Didn't you read Marbury v. Madison? I know you're an old, "get those kids off my lawn" kind of guy, but if you've decided that doing your job is beneath you somehow, do everyone in this country a favor and retire!

So like I say: what a douche.

The Irony of the Supreme Court

Tue, 27 Mar 2012 09:03:18 -0400

Today is the second day for the Supreme Court of the U.S. to hear arguments for and against the "individual mandate" of the "Affordable Care Act" (ACA), also known as "Obamacare". It's a very big deal; if the court strikes it down, it could be a big set back for the law, and a huge setback for something a lot of us unrepentant progressives think should happen in the long run: Medicare for all.

This morning, I read a tweet by the excellent reporter and columnist for the Washington Post, Ezra Klein:

Do today's oral arguments matter?

It caused me to realize that, for the vast majority of cases that face the Supreme Court, pundits who watch the court are generally pretty confident they know which way most of the members will vote. And so, in general, the answer to Ezra's question is "No" for almost any case. Which is remarkable when you think about it, because this is the Supreme Court. If any court should be swayed during "testimony", should be open to different opinions and interpretations, should not be pre-judging cases before having the facts, shouldn't it be the SCOTUS?

See, about 12 years ago, I was called to jury duty in San Jose (where I faced be impaneled twice, believe it or not). The case was an assualt; the alleged perpetrator had insisted on a court case. The judge told us--for reasons that he insisted were good, but which didn't make a whit of sense to me--that the perpetrator was facing his "third strike" under California law. (The judge in the second case, when I mentioned that to her--she asked why I had been dismissed--was totally aghast at the first judge.)

As part of the jury selection process, both lawyers are allowed to question the potential jurors, and dismiss a given number--I think it's six--"for cause", i.e. they think that particular juror will find against their client. After enjoining all the prospective jurors to "be absolutely truthful", the lawyers began their questioning. One of the questions we were all asked was, when the police who witnessed the incident took the stand, were we likely to give more credence to their statements than we were to the alleged perpetrator?

Now, I'm not a big fan of the police. In my encounters with them, I have found them to all too often be swollen to arrogance with the power they weild over ordinary folks, and the many, many stories of people being Tased simply because they did not immediately comply with an officer's request have not exactly changed my opinion. They have a dangerous job, and they're underpaid, and I wouldn't want to do it, but in the main I'm not a big fan. (I just want you to know my mental state, here.)

So when the question came around to me, I said, "Of course I would." When pressed, I said that, in my opinion, a perpetrator faced with a possible third strike would have a huge incentive to lie about the facts of the case, and the police much less so. The judge saw fit to berate me about it: "So you are pre-judging the facts of the case!" he said. No, I said; I'm simply acknowledging the reaslity of the situation where one person has a lot more reason to lie than another. How is that prejudging? (And frankly, any juror who claimed different was lying, as far as I'm concerned.)

As you might guess, the judge was livid, and gave me a lengthy lecture about pre-judging, judicial impartiality, and only judging things by what was presented. I felt that anyone who claimed they could set aside the guy's two strikes when listening to his testimony was either a saint or a liar, but I kept my opinion to myself. I was "excused", as you might imagine.

Which brings us back to the SCOTUS. These people are judges; they are required by their job title to be impartial, listen without prejudice to the facts of the case, indeed to be judicial. And yet for nearly every high-profile case that goes before the court, the only vote in question is usually Anthony Kennedy; Scalia, Thomas, Alito, and Roberts make judgements like the right-wing, Federalist Society judges they are. Their rulings read more like rationalizations of positions they already held, not well-reasoned, impartial judgements based on the facts at hand.

And that's the irony: I got lectured in a minor assualt case because I told the truth about my prejudices. The SCOTUS insists to us, constantly, that they are above such petty prejudices and they only rule According to the Law. And we all know that's total bullshit. Hell, all the reporting on SCOTUS cases assumes that that's bullshit.

And that, frankly, is incredibly sad. Congress and the Executive Branch are corrupted by money; the SCOTUS is a bunch of prejudicial liars. Doesn't leave us with many checks and balances, does it?

Don't Talk "Women's Health"; Talk Sex!

Thu, 8 Mar 2012 16:03:31 -0500

I bet you never expected Republicans to be . . . the Spanish Inquisition!

If you've been reading the papers or watching the TV lately, you've probably seen mentions of the blowback against the Right-wing anti-sex-for-pleasure crowd created by this horrific, invasive, unnecessary bill in Virginia. In brief, the right-wing jerk-weeds who grabbed power in 2010 due to people actually believing that the Republican politicians cared about jobs, have been using their new-found power in Virginia (and lots of other places) not to create jobs, but to fight abortion, stomp on unions, and lots of other pet right-wing social projects.

The thing about Virginia is, the legislature was working on a bill to force women to get an ultrasound before an abortion. And because the only way to fulfill the requirements of the bill is to force a woman to have a probe stuck up her vagina, this is basically state-sponsored rape. (Yup, that's a harsh word to use, but what do you call it when a women is forced to have something stuck into her against her will? That's the word that fits.) The story went viral, and caused a huge amount of outrage.

Let me just say right out: anyone who denies that this bill is meant to shame women and make abortion more difficult is a liar, net. This is an unnecessary medical procedure that the state is forcing on women against their and their doctor's wishes. I find it hard to imagine anything more invasive or "big government." But then, the Republicans don't give a crap about their principles when guns, god, gays, and abortion are involved--any means fair and foul to advance their agenda. (It's the same with regard to "activist judges" too, by the way; they are fine with "activist judges" so long as those judges are making "activist" conservative decisions. But I digress.)

I've been thinking about this a lot, recently, and wondered why this time this issue evoked such a strong response, but hasn't previously. And I have a theory:

Recently, Republicans have been not only fighting against abortion rights, they've been fighting against contraception, too. And I think that this finally achieved a level of viral attention is that it became obvious, even to boneheaded guys like myself, that Republicans wanted to a) prevent you from having sex unless it was to make babies, and b) wanted to force you to have those babies whether you wanted them or not. No sex for fun anymore; you get your girlfriend knocked up, and you're a Parent, like it or not.

Now I'm seeing a lot of women "frame" this issue as a "women's health" issue, and honestly, I think that's a big mistake. A guy--even a relatively enlightened, Birkenstock and ear-ring wearing, UC Santa Cruz graduating, in-touch-with-his-feelings guy like me--hears "women's health", and tunes out. Not because we don't want our female partners to be healthy; of course we do! But under "women's health" comes a lengthy list of things that guys most assuredly don't want to think about--stirrups, and mammograms, and "pap smears" (whatever the hell they are), and Midol, and tampons, and "sanitary napkins", and maxi-pads, and all that other stuff that guys simply don't want to think about.

You may think I'm denigrating all the stuff that women have to deal with; I assure you I'm not. No. What I'm saying is, as much as those things and many more are part of the life of every woman, they are also in that category in a guy's head: "Stuff to not deal with". You can yell that that's not fair, and that guys should care, and insist on parity with all the stuff guys complain about ("Don't you get it; that thing hit me in the balls!"), and you'd be right. I'm not talking fair, here; I'm talking about a lizard brain reaction. "I have an OB appointment;" "I'll drive you and then wait outside and I absolutely don't want you to tell me anything other than, 'I'm okay'."

But that's why the recent anti-contraception push and the Virginia law actually seemed to make inroads on guys. "Wait a minute; you want me to become a dad every time I do the beast with two backs with my gf? Are you out of your mind?" And then they want to rape your gf if she has the temerity to get an abortion. Yeah, that penetrates your average guy's brain: the threat of forcing him to become a dad. That gets his attention.

So framing it as "women's health" is a loser, in my opinion. Frame it as "Republicans are against sex;" or "Republicans want to force you to become a Dad"; or "Republicans don't want you to get laid unless you want to be a Dad." All of those will make an impact (believe me!); but "women's health"? No; a guy will shunt it off into the "not my problem" pile, and that'll be that. Not fair. Not reasonable. But I really think it's true.

So join with me, please, when I tell all those Republicans out there: I like sex! I enjoy sex! And I don't want to make a baby every time I have sex with my partner! And by the way, if you try to rape my partner with that damn probe, I'll beat the crap out of you!

Say it loud and say it often: I like sex, and it's none of your business, Republicans!

I'm just sayin'.

Republicans and Birth Control

Sat, 25 Feb 2012 14:02:42 -0500

The face of the Republican Id; not pretty, is it?

The Republican party--they of "limited government" and "no judicial activism" and "keep the government out of my personal business"--has been a bunch of flaming hypocrites for a long time, of course. Used to be, though, that they at least hid their hypocrisy behind some plausible-sounding verbiage. But then economic dissatisfaction with the current ruling party in 2010 (the Democrats at that time) caused them to be swept into power across the country.

Drunk with power, they figured that people were voting for their social programs, rather than out of the desparate hope that they were being honest, and really wanted to do something about unemployment. And in state houses and the U.S. Congress, they immediately set about trying to enact all their pet social programs. And now they're astonished that people who voted for jobs and money help but are getting instead anti-abortion and anti-union laws are mad at them and pushing back. The ingrates!

The most recent--and astonishing--fight has been over birth control. Republicans are actually trying to limit people's access to birth control! In 2012! And they're trying to pretent that it's all about religious liberty and freedom of conscience, when it's obvious to anyone with half a brain that it's about . . . trying to outlaw birth control. Salon had a good write-up about the Republicans trying to pretend otherwise. And while reading this post, I could only think one thing:

Wow; what a profound display of pretzel logic by the Republicans.

Of course this is all about birth control. For as long as I can remember, Republicans have been trying to refight the 60s culture wars and roll back all the changes (I would call them "gains", but I thought I'd go neutral) that occurred then and in the 70s--gay rights, women's rights, access to birth control, easier access to divorce, access to abortion, and on and on. The GOP hates all that, and has been pushing against it hard since the "Reagan Revolution" of the 80s. They may find new Frank Luntz-inspired verbiage to hide behind--"it's about religious liberty!"--but it's all B.S.

Republicans want to force you to only have sex with a married partner of opposite sex, and only for procreation. Virgin until married. No abortions for any reason. No drugs for the purposes of pleasure. (I would argue nothing for the purposes of pleasure.) They want an evangelical, right-wing Christian state where the laws support that narrow view of sexuality and pleasure. Hell, I'm surprised they're not trying to outlaw vibrators and picketing Stormy Leather in San Francisco. The only difference now is, they're not hiding it particularly well. And the folks who have been having sex for pleasure without a high risk of children are, understandably, not down with that plan. (I find it staggeringly ironic that people like Rick Santorum, above, use the word "freedom" when they want to deny things to people that the people want. How is that "freedom", Rick?)

So nope, I don't believe a word of the B.S. these various Republican mouthpieces are spewing; Rick Santorum speaks for the Republican Id, and he's made it clear that Republicans want to roll the clock back, relationship-wise, to the 14h Century. This anti-birth control push is just one facet of that. People like Ed Goeas and Cindy Graves can make noises about "religious freedom" and the 1st Amendment, but it's all manure.

Frankly, I think the only reason they're mad is that their desire for a right-wing Christian theocracy is now obvious to the public at large, and the pushback is scaring the crap out of them. In a way I'm grateful; we "alarmist" progressives have been warning about this for ages (since Reagan, if not longer), and no one has believed it; now that they're being so obvious about it, people are waking up. Good luck taking people's hard-won freedoms from them, GOP; I don't think you're going to have a lot of success.

N.B.: parts of this post originally appeared in the letter column of Salon.

The "Ancients" Were Smarter Than You Think

Sun, 22 Jan 2012 19:01:37 -0500

When I was growing up and learning some history, I used to think that people in the past were, well, stupid. Why didn't they realize that bleeding you made you worse, not better? Why didn't they understand electricity? Why didn't they figure out you could burn oil? How come they didn't invent the steam engine sooner? What were they; a bunch of stupes?

Then I got older and learned that it was 'way more complicated than that, and that in a lot of ways, plenty of those folks were easily as smart as "modern" folks, and in some cases smarter. Why didn't they figure out all that stuff? Well, partly because they didn't have the tools--calculus, for example. But partly because you need a foundation of tech to build more tech. It takes a while.

Lately, though, I've been watching the HBO series "Rome," and I've come to believe that we're not really smarter than those folks at all. I think a lot of our rapid advance is due to the fact that there are just so durn many of us--if there is 1 "genius" for every, I dunno, 10 million people, well, when the planetary population is 7 billion, there're a lot more geniuses than when it was only a few millions or tens of millions, yeah? I mean, seriously: with the simple tools they had advailable at the time of the Romans, do you think you could make a tens-of-miles long acqueduct that would still be functional 1000 years later? (Yeah, me neither.)

What brought this to a head for me, though, was reading about the Battle of Pharsalus which, in case you didn't know (I sure didn't) was basically Julius Caesar's decisive win, the battle that pretty much turned the Roman Republic into a nascent Empire. After the battle--in which a greatly outnumber Julius basically kicked Pompey's ass all the way from Greece to Egypt--the people flocked to Caesar's side. Here's how the Wikipedia entry reads:

After Pompey's defeat former allies began to align themselves with Caesar as some came to believe the gods favored him, while for others it was simple self preservation. This mentality is difficult to understand in our modern age but the ancients took great stock in success as a sign of favoritism by the gods. This is especially true of success in the face of almost certain defeat as Caesar experienced at Pharsalus.

I read that and I thought, "Really?" Are we modern folks really that different? We don't say "the gods favor him;" but how many sports games have you watched where you (or the commentators) say, "They really have the momentum now!" How is that concept of "momentum"--which when it comes to battles, sports, political races, or anything other than physics is a purely mental construct--any different from "the gods favor him"?

Or consider the concept of "streak shooting" or "streak hitting" or "clutch performance". Once again, this is a concept for which many, many people have tried to find a physical of mathematic basis, and failed. But if you ask most people, they deeply believe in the concept that, say, Big Papi of the Red Sox is a "clutch performer", or that Will Clark was a "streak hitter", or that sometimes in a game a player gets "into the zone". And I submit that there is no quantitative difference between believing that, and saying, "The Gods favor Eli Manning today." Furthermore, given how many people felt that God was, literally, favoring Tim Tebow, where do we get off saying that "this mentality is difficult to understand in our modern age"? I don't think it's hard to understand at all, because we're still doing it.

Put it this way: after Caesar kicked Pompey's butt at Pharsalus, he had the momentum, people recognized that, and got on the Caesar bandwagon. That's how we'd put it today, in our "modern, enlightened" age, but let's face facts: it's no different than what "the ancients" were doing. We just say it differently, is all.