Scalia On the Right Side for a Change

Antonin ScaliaIn the Supreme Court case Maryland v. King, Justice Scalia is a hero. This is the case where the Court found that we really aren’t innocent until proven guilty. Anything that the police want to do with someone arrested is just fine as far as the majority is concerned. In recent years, it has seemed that Scalia acted more like a talk radio host than a Supreme Court justice. But in this case, he wrote a very forceful and compelling dissent.

It all started in the hearing. Katherine Winfree was arguing for the state. She said, “Since 2009, when Maryland began to collect DNA samples from arestees charged with violent crimes and burglary, there have been 225 matches, 75 prosecutions, and 42 convictions, including that of Respondent King.” To which Scalia responded, “Well, that’s really good. I’ll bet you, if you conducted a lot of unreasonable searches and seizures, you’d get more convictions too.” There was laughter and then he finished, “That proves absolutely nothing.”

Glenn Greenwald tweeted the following poster

Scalia Quote from maryland v. King

The issue is a tad bit more complicated than Scalia would indicate. Unfortunately, it is far far far more complicated than Kennedy, writing for the majority, would indicate. Basically, Kennedy claims that the DNA is only used to identify the person arrested. Clearly, that was not the argument that Maryland was making. It was just a cheap way for the majority to rule in Maryland’s favor. Emily Bazelon over at Slate provides a good example. We do not allow the government to search the houses of arrested thieves on the suspicion that they may have stolen other things that they may find there. So it wouldn’t have be easy for the majority to find that Maryland had a similar right just because it was DNA and not a home search. And that’s why we got this ridiculous notion that the DNA search is okay because it allows the state to ID the arrestee.

Scalia shot down this idea with such ease that the majority should have been embarrassed. Bazelon explains:

Has Kennedy never watched a TV crime show? That is basically Scalia’s opening question, in an opinion he felt strongly enough about to read from the bench—not the standard practice. “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous,” he writes. Then he decimates Kennedy’s discussion of booking and bail with a few obvious and unchallenged facts: It took weeks to test the DNA of Alonzo King, the arrested man who challenged Maryland’s DNA collection law, and months for the samples to come back from testing. By then, booking, arraignment, and bail were long over. “Does the Court really believe that Maryland did not know whom it was arraigning?” Scalia asks. “The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity.”

The problem from my standpoint, is that the court has ruled incorrectly on this kind of stuff for so long that it is hard to say how the court ought to rule now. Basically, the court has carved out so many exceptions over the years that the Constitution itself is pretty much irrelevant to the issue. Why are the police allowed to do suspicionless searches at DUI check points? The Supreme Court came up with some mindless idea of “special needs.” But even further back, finger prints are not simply used for identification. All of this stuff is simply meant to make the job of policing easier. And given the huge rise in the incarceration of nonviolent “felons,” I don’t think we ought to be doing that. It reminds me of the film Demolition Man where Alfredo tells Spartan that he doesn’t even know what the police did in his day before all people had tracking devices implanted in them. Spartan says, “We worked for a living. This fascist crap makes me want to puke.”

In this case, I side with Scalia’s “originalist” interpretation of the Constitution. But it shows just how useless the idea of the original intent of the Constitution is in such matters. There are (depending upon how you define it) one to three other judges who might be called “originalist.” And all of them voted against Scalia. A better argument is the practical liberal one: according to one recent study, one-third of all 23 year-olds have been arrested. So the majority is effectively claiming that it is okay to allow DNA testing of a vast fraction of the population. (Note: the Maryland law only applies to some crimes, but the majority opinion provides no such limit.)

It is hard to look at America and not think that while we are making very small strides in some areas (a deeply flawed policy to provide health insurance to a lot more people), we are making very big strides in the opposite direction in other areas. The way we deal with social control is totally unacceptable: building (more and more private) prisons and locking up more and more people for breaking laws that earlier generations would have thought inconceivable. It was once thought that charging 30% interest on a loan would put you in the 7th level of hell. Now we consider such people the very best our society creates. Meanwhile, ingesting forbidden plant material can put you in prison for the rest of your life.

I’m at least glad that on this very specific case, Scalia is on the side of right.

Frank Lloyd Wright

Frank Lloyd WrightOn this day back in 1625, Giovanni Domenico Cassini was born. The name probably sounds familiar because of NASA’s Cassini–Huygens spacecraft that they sent to Saturn. That’s because Cassini did some important early observations of the planet. He discovered four of its moons and also the division of Saturn’s rings. Christiaan Huygens did a lot of the same kinds of things at the same time. But it isn’t Huygens’ birthday. Cassini also made important discoveries about Jupiter. And most impressive from my standpoint, he calculated the distance to Mars. He did this by sending a colleague to French Guiana while he stayed in Paris. Then they each took simultaneous measurements and were able to get a rough approximation of the distance. Since scientists already knew the relative distances of most things in the solar system, this calculation established the distances for everything. Very cool!

Baroque composer Tomaso Albinoni was born in 1671. He is best known for his Adagio in G minor. I assure you that you’ve heard it, but if you really want to know, you can listen to a fine guitar arrangement for it by Peo Kindgren. At this point, I really don’t want to hear it again. But here is a much more fun performance of his Concerto for 2 Oboes in C Major:

Romantic composer Robert Schumann was born on this day in 1810. I fully admit that he was a great composer. I just don’t like him. British illustrator George Charles Haite of The Strand fame was born in 1855. The mind-blowing four-dimensional geometry mathematician Alicia Boole Stott was born in 1860.

De Boever - Carrion-The Flowers of EvilThe great and under-appreciated Flemish Symbolist painter Jan Frans De Boever was born in 1872. His work is, well, morbid. If Edgar Allan Poe had lived a hundred years later, and was a painter, he would have been De Boever. It is just the perfect combination of eroticism and death. Some might have a problem with that, but the connection to me is very strong. I will stay away from the obvious and just say that both highlight the decay of the flesh—the essential impurity of the material world.

Not completely irrelevant Abstract Expressionist Harry Holtzman was born in 1912. Biologist Francis Crick was born in 1916. Actor Robert Preston was born in 1918. I was very surprised to learn that he wasn’t gay. I clearly have a bias, because I had the same reaction to Joel Grey. Just because a man can sing and dance does not mean he’s gay. Anyway, here is Preston at his best:

And pop artist LeRoy Neiman was born in 1921. You know his work.

Barbara Bush is 88 today. Jerry Stiller is 86. I’ve always though his wife was funnier. They will celebrate their 60th anniversary next year. Joan Rivers is 80. Nancy Sinatra is 73. FallingwaterBoz Scaggs is 69. Bonnie Tyler is 62. The great guitarist and founder of Black Flag, Greg Ginn is 59. Unfortunately, I can’t find any good video of him. Cartoonist Scott Adams is 56. And comedian Keenen Ivory Wayans is 55.

What a day! With so many great people, who would rise to the top? Well, it isn’t that I think he is necessarily greater than Francis Crick or Robert Preston or even Scott Adams, but the day belongs to Frank Lloyd Wright who was born in 1867. Consider Fallingwater on the left. Or pretty much anything he did. It is all beautiful and smart work. I think sometimes people exaggerate his greatness in comparison to other architects. There was a lot of great architecture going on in the United States. And also Europe, even if Tom Wolfe doesn’t like it.

Here is the Guggenheim Museum, a perfect combination of form and function:

Guggenheim Museum

Happy birthday Frank Lloyd Wright!

Karen Finney’s Disrupt Looks Pretty Good

Karen FinneyI’ve long anticipated Karen Finney getting her own show on MSNBC. In fact, for a while, I thought it might be some kind of political version of The View with Finney, Goldie Taylor, Joy Reid, and some conservative affirmative action case—almost certainly a blond. But today, Karen Finney started her own show, Disrupt. And I was there to watch.

The show is about what I would expect from Finney. She is too much of a Democratic apologist for my tastes. But there is a place for her kind of centrist Democratic commentary. And the issues on the show weren’t bad: sexual abuse in the military, NSA surveillance, IRS scandal, military families. I got a little annoyed by the discussion of surveillance. Finney controlled the discussion far too much and focused on the straw man, “Does the government have the right to keep secrets?” No one, and certainly not her guests, are making that argument. Ill talk more about that in another article, so leave it at this: the discussion of surveillance was by far the weakest segment on Disrupt—not because I disagree but because the discussion was too limited in scope.

Of course, there were many things to like about the show. Although there were a few technical glitches and Finney was understandably less relaxed than normal, the show was surprisingly good for a first outing. Also, it was nice to see only women discussing the sexual abuse issue and mostly women overall as guests on the show. Also, Disrupt pushes against the practice of Chris Hayes and Rachael Maddow by having a fast paced show. It also featured some unusual edited bits that I didn’t really like, but that I think will grow into something really good.

In discussing the IRS scandal, Finney invited on our favorite Tea Party Idiot Amy Kremer. As much as I think that Kremer’s existence is a bad thing for democracy in America, I have to give you top marks for even being willing to go on MSNBC. And she does manage to get her points across, even if the points are nothing more than right wing hate radio talking points. When I saw she was on the show, I despaired. She brings out my Tourette syndrome. But Finney handled her brilliantly. Kremmer repeatedly pushed the idea that since there is no evidence that Obama was involved with the IRS scandal, it means, “We just don’t know if Obama was involved with the IRS scandal.” Finney would have none of it. And I was glad to see it. It bodes well for the future of the show.

I’ll be interested to see how Disrupt progresses. Even in its current form, it is totally respectable—a good addition to the MSNBC family. And it adds another woman to their lineup. I look forward to seeing Goldie Taylor and Joy Reid (who is guest-hosting The Ed Show today) with their own shows soon. But it is great that Karen Finney at long last has a permanent spot on the MSNBC schedule. I expect good things from her and the show.

I will provide a link to the show as soon as I find it!

McConnell’s Court Shrinking

Mitch McConnellI just saw Jonathan Alter explain something really interesting about this whole fight involving Obama’s three simultaneous nominations to the DC Circuit Court of Appeals. A couple of weeks ago, I mocked Chuck Grassley from claiming this was “court packing.” As I explained, that’s not what the phrase means. It dates back to Roosevelt’s threat that if conservatives on the Supreme Court wouldn’t let his legislation stand, he would just increase the number of people on the court and pack the vacant seats with liberals. This is not what Obama is doing. He is just filling already vacant seats.

After writing that, I was surprised to see that Mitch McConnell was saying the same thing that Grassley was. It was apparently a new conservative meme—false though it was. But McConnell took it further. He claimed that what we really needed to do rather than fill the three vacancies on the DC Circuit Court, was to just reduce its size to the eight members it now has. He claimed that it was an underused court anyway and the extra judges could be better used in other courts. That turns out not to be true. Shocking! In fact, the DC Court deals with more complicated cases, so the fact that they hear fewer cases is irrelevant. But clearly, McConnell is just attempting a political maneuver, and that is clear enough to everyone.

This is where we get to Alter. He noted that although Obama is doing nothing like “court packing,” McConnell is proposing exactly that—just in the opposite direction. The court is now fairly conservative with its eight judges. He doesn’t want it to get more liberal by allowing it to be filled with three more judges from a Democratic president. Alter calls this McConnell’s “court shrinking” scheme. And he is quite right to! Here is the sequence on Up with Steve Kornacki:

This is entirely in keeping with the modern Republican approach to minority politics. Despite what Josh Barro my think, he and other conservative pundits function primarily to give conservative politicians plausible justifications for their positions. In Barro’s case, he claimed that I was against talking about infrastructure cost-effectiveness. But that wasn’t the case at all. What I was arguing was that Barro was giving political cover to Chris Christie’s ideological position. And there is no doubt that this is true.

In McConnell’s case, he must know that he isn’t making any sense. But no one in the mainstream is attacking him for it, because his argument sounds plausible. But even if the situation were like with Barro (having the benefit of being correct), it would still be the case that the justification was ex post facto. Since McConnell is more than simply wrong because he throws in hypocrisy, he ought to be laughed out of politics. But of course, he won’t be. There is nothing short of cheating on his wife with a man that can cause a conservative to lose credibility with the mainstream news.

Conservative Goals and the NSA

NSAYesterday, I happened to hear David Brooks on NPR. He was asked about the huge NSA surveillance program. He said, “I’m somewhat bothered by the secrecy, but I don’t feel it’s intrusive. Basically, they’re running huge amounts of metadata through an algorithm. That feels less intrusive to me than the average TSA search at the airport. And so I don’t think it’s particularly intrusive. It is supervised by the court. It has some congressional supervision.” Okay, it’s Brooks. What’s the big deal?

Well, that morning, the Wall Street Journal editorial page wrote, “We bow to no one in our desire to limit government power, but data-mining is less intrusive on individuals than routine airport security.” I think it is interesting that Brooks is brought on NPR as a “reasonable” Republican and he just spouts the WSJ editors. Brooks is not supposed to be just some random politician; he’s supposed to be an independent thinker. But let’s leave that aside.

Jonathan Chait wrote a good article yesterday, Conservative Freedom Lovers: You’re Doing It Wrong, in which he showed the cognitive dissonance in the conservative movement regarding issues of freedom. For example, noted that Jack Welch is a-okay with the NSA spying, even as he claimed that Obama was secretly manipulating the Jobs Report for his own nefarious purposes.

Or consider Roger Vinson, who was one of the lower court judges who struck down Obamacare. He claimed that if the government could force people to get health insurance, it could force them to do anything. So he’s a big believer in freedom. Or at least certain kinds of freedom. As Chait noted, “Judge Vinson has reentered the news for having approved the National Security Agency’s program of collecting all of the phone records in America.”

This is an issue I talk about a lot: the tyranny of libraries. I first noticed this with libertarians. They argued that taxes to pay for libraries were as awful as taxes to pay for the military. The situation is far, far worse with conservatives. They argue that taxes that go to the military and spying only make us more free whereas libraries are some kind of communist plot. This puts history on its head. Autocrats do not rule by the force of their public libraries. They rule by the force of their military and secret police.

A common complaint of conservatives is that the Founding Fathers did not believe in a large government like we have. That’s true. I don’t think it means anything, of course. The world has changed dramatically and larger governments are a necessity. Regardless, the parts of government that the Founding Fathers most feared were the parts that conservatives proudly embrace.

Dean Baker often makes the point that on the economy, conservatives don’t want small government, they just want big government for the wealthy. It’s clearly bigger than that. In every possible way, conservatives want a big government to make sure that those with wealth, power, and prestige will continue to have it. As usual with conservatives, they don’t suffer from cognitive dissonance if you understand what their real goals are. And those goals are shared by “moderate” David Brooks and the extreme and shrill WSJ editorial page.