In one of Governor Warner's final acts in office, he asked for some DNA to be re-tested using more sophisticated technology than was available when it was originally tested. The previous test led to the conviction and ultimate execution of a convicted rapist/killer. Due to the circumstances of the case, there were a lot of question's about the prisoner's alleged guilt.
The test results came back recently, and the convict's guilt was proven.
I think this is probably the best of all possible results at this stage. I think it was actually a pretty open-and-shut case against this guy, and that Warner knew that. Warner isn't saddled with being the instigator of a major outcry against the death penalty, but he is the guy that was behind an effort to "make doubly sure" in the name of justice. People who are invested in believing in the efficacy of the death penalty can feel some relief and confidence that the system works. People who are invested in further testing of DNA to further ascertain the guilt or innocence of prisoners on death row (or who have already been put to death) also now have a major precedent of this testing action being taken now. It will be harder to simply avoid doing this kind of double-checking DNA testing in the future.
Excuse my insensitivity in not writing about the titanic momentous career of Rehnquist. Just one small point here. One of the common questions about the Chief Justice is why the Chief Justice even matters, beyond just being a status symbol and a figurehead.
One large reason is because the Chief Justice decides who will write the opinion if the Chief Justice is part of the majority.
How can this affect the operations of the Court? There have supposedly been several examples where Rehnquist:
I've unfortunately been called away to attend a memorial service, so that is why I haven't weighed in on a variety of matters that are of interest to this site. The ultra-short versions are: I'm snickering that there were no retirements for the Supreme Court. I think the Kelo decision is fascinating, and *correct* from the liberal point of view - however, the very premise of eminent domain laws are a different matter entirely, and I haven't really developed my opinion on whether they are a net good or a net evil.
I'm disappointed by the Grokster opinion, I think. I come to that as someone who is heavily involved in both worlds of creative content production (music), and of techo-libertarianism. I think the decision is a good attempt at defining a balance point, so I found the decision competent. But I do think the big content corporations need more of a smackdown than they got. Now we'll just see more bullying from the content corporations in attempts to control or legislate exactly how technological companies market their tools - they'll be just as extreme and dishonest on that tack as they were with deliberately misinterpreting the other content copyright laws.
I would have liked to see some more finesse to the Miller/Cooper decision. There's some valid first amendment worrying now. I think there could have been a better way to underscore first amendment protections, while still forcing Miller or Cooper to speak. The first amendment protections are supposed to help protect against retribution, not to make it easier to participate in retribution.
Finally, I briefly was tempted to support the efforts to pass the bills that ask for a troop withdrawal by a particular date. Now I think it's a bad idea. It really would give too much power to the people that want to undermine whatever positive objectives we might still be able to achieve. But, I do think that we need a more clearly communicated roadmap, where the benchmarks and milestones are perhaps not tied to calendar dates, but known to all and laid out in a clear step-by-step manner. This would be the withdrawal plan. Some of the dependencies are obvious (having Sunni representation completed in the interim government), and some are less obvious (like finding other more reasonable ways to have a working police force - on that, I say bring in the U.N. for real, and give up the spoils that the United States are claiming).
Some interesting battles coming up. Social Security will start happening again, and there are some murmurs of "tax reform" that could really catch Democrats flat-footed. I think that's a case where the Democrats really SHOULD have a plan to present, unlike Social Security. Democrats could create a revenue-neutral plan that would help everyone, and pound it every chance they get in comparison to Bush's plan, and then the conversation would be about progressive versus flat/regressive. And progressive should win, if Democrats are able to claim enough credibility in other areas.
Finally, I'm completely gung-ho about Dean's Democracy Bonds. Brilliant.
Yahoo shut down all their user-created chat rooms today because they've been heavily criticized for unwittingly placing ads in chatrooms that people adults were using to solicit sex with children.
I haven't thought heavily about this, but at first glance, I don't see this as a defeat for free speech in any way. This is a corporation. A corporation should not have any power to inhibit free speech, but it doesn't mean it is required to create public platforms for new forms of free speech, either.
Yes, I know what the chatrooms were being used for, and no, I don't say "free speech" to defend the exploits of the kid-soliciting adults. I'm speaking more generally about the "right" for a member of a corporate website to have a user-created chatroom.
Anyone can create a chatroom elsewhere on private servers. No legislation was passed outlawing chatrooms. If it ever goes that direction, you bet I'd oppose it. But this is simply a corporation making a cost/benefit analysis and determining that the cost (financial, ethical, or moral) of giving child molesters a platform exceeded the benefit (marketing) of being able to say "we have user-created chatrooms!"
Finally, I think the societal benefit of yahoo offering user-created chatrooms is far less than it used to be. These were pretty cool internet-changing features back in 1998. Now you've got all sorts of peer-to-peer apps for chat, videochat, four-way videoconferencing, etc. In short, I don't really see this as a big deal.
Strange 5-4 decision on allowing interstate wine sales. Majority: Kennedy, Scalia, Souter, Breyer, Ginsburg.
Minority: Thomas, Rehnquist, O'Connor, Stevens.
Update: It turns out that that particular lineup has never happened since this nine made up the Court. Professor Bainbridge has a good examination.
There's a pretty cool system being put together here - give them your SMS cell phone information, and you'll be informed the minute Frist pulls the trigger to try and vote on the nuclear option. You'll even be given phone numbers to call to pressure Congress not to do it.
This isn't a subject that gets a lot of play in the political world, but it's definitely something that needs more attention if we care about America's ability to quickly innovate and reward talent in the future. IBM, one of the largest patent-holders in the U.S., has called for patent reform. Neither Republicans nor Democrats have made much noise about this subject, and in fact, those with more lobbying connections are probably on the wrong side of the issue.
Just in case no one caught this, the latest appeal denial angrily states that Congress sought to actually assert control over the judiciary branch. In other words, this was basically an attempt at a judicial coup, an intentional subversion of the Constitution itself.
... Because these provisions constitute legislative dictation of how a federal court should excercise its judicial functions (known as a "rule of decision"), the Act invades the province of the judiciary and violates the separation of powers principle. [...] By aggrogating vital judicial functions to itself in the passage of the provisions of Section 2 of the Act, Congress violated core constitutional separation principles, it prescribed a "rule of decision" and acted unconstitutionally. [...] when the fervor of political passions moves the Executive and the Legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene. If sacrifices to the independence of the judiciary are permitted today, precedent is established to the constitutional transgressions of tomorrow.
Emphasis theirs. It also includes some withering commentary about the hypocrisy of Congress's "activist judges" rhetoric. For anyone interested in blistering judicial opinions, read the opinion (pdf). The language is classic and timeless.
Update: NY Times has coverage on this issue.
Oral arguments happened today in the case of M.G.M. v. Grokster. Strange bedfellows all around on this - you'll see established recording artists like Henley and Sheryl Crow against independent artists like Brian Eno and Chuck D. Here's some wire coverage. Some other coverage. SCOTUSBlog has in-depth coverage.
I enjoyed this part of the msnbc coverage:
Justice Antonin Scalia maintained that a ruling for entertainment companies could mean that if “I’m a new inventor, I’m going to get sued right away.”
Update: Salon has feature coverage.
There's a big day tomorrow in the technology world. Oral arguments are happening at the Supreme Court for M.G.M. v. Grokster. The basic question is whether companies that develop filesharing software can be held liable for the behavior of its users when they don't respect copyright.
This a highly unfortunate wedge issue on all sides because it is confusing. But this is very much a case of the little guy versus the big guy. Technology is an enabler, and it develops quickly. This means that there can often be "awkward adolescent stages", such as when very exciting developments in technology can lead to a surge in what had always been seen as criminal behavior.
But the absolute wrong thing to do is to limit the ability to create new technologies, and that is basically what this case is about.
M.G.M. is on the regulation side, and Grokster is on the free market side. But this is a case where the free market advantages the little guy, and regulation advantages the big corporation. In this case, you've got free market AND the little guy - it should be a no brainer as to which side should be the winner.
I am a musician. I'm licensed with ASCAP as a writer and a publisher, and I care about copyright. But the way to deal with this exciting technology is to leverage it to enable more marketing and distribution paths for the independent artist, not to clamp down on technology so that all marketing and distribution paths are gateways controlled by those who have the most legislative influence.
Legislators who have proven they've been willing to consider this issue thoughtfully include Rick Boucher (D), Chris Cannon (R), and Orrin Hatch (R). Many Democrats that have lobbying relationships with the entertainment industry have been on the wrong side of this issue. This is one of those cases where everything is topsy-turvy and "Democrats versus Republicans" does not apply.
And check out what Mark Cuban has to say when he discloses that he financed EFF's effort against M.G.M. It should be required reading for those on the fence.
It wont be a good day when high school entrepreneurs have to get a fairness opinion from a technology oriented law firm to confirm that big music or movie studios wont sue you because they can come up with an angle that makes a judge believe the technology might impact the music business. It will be a sad day when American corporations start to hold their US digital innovations and inventions overseas to protect them from the RIAA, moving important jobs overseas with them. [...] Its about our ability to use future innovations to compete vs their ability to use the courts to shut down our ability to compete. its that simple.
Myself? I think America is in trouble because of accumulating debt, and I believe our best chance to beat it is to innovate our way out of it. That means pro-technology, pro-innovation, pro-small business, patent reform, copyright reform - all to enable freedom of movement for small businesses, inventors, innovators, and entrepreneurs. We have been on the opposite road for a while now, and have departed from what Jefferson intended. If you care about small business, innovation, and the little guy, root for Grokster.
Speaking of reality returning: "You are not speaking for our family."
David Brooks makes stuff up in his latest column.
First, he's saying that on the conservative side, the Schiavo argument is about life needing protection no matter what, and that people in vegetative states need to be kept alive because of the sanctity of life.
I don't see how that squares with all the arguments the Schindler supporters are making that she's not really in a vegetative state. If it were as Brooks says, why would they bother?
Second, he says that on the liberal side, the argument is about avoiding the moral subject of "sanctity of life" and talking about process instead.
It's not true. I've seen focus on process when the subject has been about kicking it back to court, which is also about process. It's unnecessary to kick it back to court when the grounds of the new lawsuits have already been settled in previous courts. But, there's also a sanctity of grieving, and of privacy, and of closure. There's the difficult choice of refusing medical treatment, and the reality that it is morally defensible. Those are all moral points the left is making. And even many of the Schindler supporters don't contest that last point. They're not all saying it's immoral to unhook someone from life support. They're saying she can get better.
I understand a lot of the general split between left and right. The right places more emphasis on values, even if they can't make their actions measure up. The left places more value on integrity; aligning one's actions and values. The right too easily screams "relativism!" when a liberal challenges their values in an attempt to evolve. The left too easily screams "hypocrisy!" when a conservative stumbles.
But this case isn't about morality versus relativism. You've got people trying to bring glasses of water to a woman that is physically unable to swallow. Doctors proclaiming diagnoses of consciousness when they have never met her in person. Accusations of "judicial terrorism" when the judicial history has been so consistent. There's an element of incompetence here. When one so doggedly insists on a path that is not even possible, you can admire them for their persistence, but it doesn't mean they set a good example to follow. That's the difference between what is happening here, and true "values". They could argue an immorality of disconnecting any PVS patient, but they aren't. They could argue an immorality of disconnecting a particular PVS patient that has clear indication of a misdiagnosis, but they don't even have that.
Moderates and compromisers can try to find balance points all they want, but the point here is the elephant they are refusing to see: denial. The driving force here is that this became a cause. Causes self-justify. It spread, even to people who were hazy about the backstory. The defense of the cause became the cause, more than representing Terry. And in the process, the people adopting the cause became divorced from reality.
Reality returns, sooner or later. Reality must be accepted, whether you are liberal or conservative. A conviction not based in reality, no matter how passionately expressed, is not a "value" or a "moral". It's a denial and a delusion. Arguing reality in response is not relativism or "process". It's sanity.
Update: MajikThise points out more inconsistencies.
I was reading Olbermann's interview with the man who was appointed to reconcile the differences with the Schiavo case. I was struck by the following exchange:
OLBERMANN: Ultimately, when you were involved in this case, what were your recommendations to Governor Bush and would you give the same recommendations under these circumstances today?
WOLFSON: My recommendations were that additional swallowing tests and neurological tests should be performed for the purpose of resolving the dispute between the parties. Because the legal process and the medical process, I felt, had been competent and had met the standards of proof. But only if the parties agreed in advance as to how the results of those tests could be used.
If you'll look at my final report, we had a draft agreement. And we almost got there. At 11:50 p.m. on the 30th of November, Sunday night, before my report was due on the first, all of us were pretty much agreeing to walk into that room and talk about how we would do that.
Mr. Felos called me at 11:50, Michael's attorney. And he said, "Jay, I can't do it. I can't do it, because I'm challenging the law that appointed you, the constitutionality of it. And if I accept anything that you're proposing, then I am diluting my legal and constitutional challenge. I can't."
He was right in doing that legally. And as you know, the law was deemed unconstitutional and then everything I did was technically moot.
That's a shame. He was right, legally, but it sounds like it might have been a real opportunity for a peaceful resolution. (Although no one could have planned for the hysteria that actually has happened.) And I don't see why it would have been impossible to move forward with that process while still opposing the constitutionality of the law. Did he just feel like it would dilute his standing, or was it actually true in a legal sense?
Is it just me, or is this whole Schiavo thing really just about moving pawns on the board in preparation for Rehnquist's retirement? The Republicans (and many Dems) were completely out of step with the American public on this issue. Seems like the smart play would be for the Dems to make the point - over and over and over again - that that moderate judiciary was the only thing left that was powerful enough to represent and protect the public will, and that that is why the public should oppose "going nuclear".