The rule of law, my ass!

I agree with the idea of rule of law.  But, I don't believe in the rule of law as it is.  What if, as Dickens described it, the law is an ass?

Think about this: Slavery was legal for a long time.  Yes, slavery was legal.  The Constitution as it was framed did not even consider blacks to be fully human!  Will we be happy with the rule of law as it was?

The rule of law also requires a constant critical examination of what is wrong with the law.  We humans are imperfect, and the laws we craft will be imperfect.  It is up to us to make laws less imperfect.

Last spring, we watched a documentary that taught us about yet another imperfection, which remained the law for a long time.  It was about the Chinese Exclusion Act.  The details in that completely floored me.  The law not only made it illegal for Chinese to come to America, it even denied the citizenship of those who were already in America.

The rule of law is not sacrosanct because the laws can be awful.

The challenge to the law went all the way to the US Supreme Court.  In 1889, the Court upheld this law.  And was the law for six decades.

Remind me again why the rule of law is sacrosanct!

In the recently concluded hearings at the Senate regarding the nomination of brett kavanugh to the Supreme Court, Kamala Harris asked the nominee about what he meant as settled law, which kavanaugh touted often.

In the 1889 Chinese Exclusion case, the Supreme Court permitted a ban on Chinese people entering the United States. The court said Chinese people are "impossible to assimilate with our people" and said they were immigrating in numbers "approaching an invasion." This case has never been explicitly overruled. Can you tell me was the United States Supreme Court correct in holding that Chinese people could be banned from entering our country,” Harris asked.

Even to a non-law person like me, it was obvious that the question was not really about the Chinese Exclusion Act per se. So what was the question really about?

It was about trump's Muslim Ban.

Go back to that Kamala Harris question, and make the following substitutions: Muslims in place of Chinese, and 2017 in place of 1889.  It becomes deja vu all over again, right?

Should such a case go up to the Supreme Court, what would kavanaugh do?

So, what was kavanaugh's response about the 1889 ruling?

It was pathetic. Awful. Disgusting.

Watch for yourself.

Cry me a river!

In my life, I have successfully (?) managed to piss quite a few people off my real world and cyber interactions.  Especially after 63 million voted for an avowed white supremacist in the November 2016 elections.

One guy, Lao Ming Zhi, continues to hang around; let's see when I manage to piss him off too ;)

A calm guy, he is pissed off--not at me though.  It is about a case that the US Supreme Court will soon decide on--Microsoft rejected the US Justice Department's warrant to produce emails from a suspected drug trafficker's account.  The company, whose global headquarters are only a couple of hundred miles from where I live, argued that the emails are stored in a data center in Ireland and, therefore, the US government is engaging in unlawful extraterritorial reach.  By this summer, the SCOTUS will rule on this.

I had to restrict my comments within the scope of his blog--which is all about business--and the scope of his post.  And, so, will bring the rest of the story here.

It is a joke when a corporation like Microsoft tries to act all saintly.  Ethics is rarely their concern. "Business ethics" is one of the best oxymorons ever.  Respect for individuals' rights is not in their charters.  If it adds to their profits, they will sell my soul to the Devil in a nanosecond; the only reason they have not done so yet is because the Devil is also pissed off at me ;)

I have no tears for Microsoft is all I am saying.

Microsoft, like all other big tech companies, has been a willing participant in the Chinese government's harassment of its citizens.  Harassment is a vast understatement.  It has been documented by many human rights organizations.  But, the tech companies do not care.  Remember that "business ethics" is not their concern as long as profits can be made.

With age, Microsoft is becoming more responsible.  But then there are other Microsofts that have sprung up--Facebook, Google, ... Profit is the bottom-line.

After all these years of the tech companies playing by China's rules, now China is pushing its cyber censorship across the globe.

For years, China has exerted digital control with a system of internet filters known as the Great Firewall, which allows authorities to limit what people see online. To broaden its censorship efforts, Beijing is venturing outside the Great Firewall and paying more attention to what its citizens are saying on non-Chinese apps and services.
...
This effort is accelerating as President Xi Jinping consolidates his power.

Who cares if a few million Chinese voices are stifled, right?  We need economic growth, and humans are mere resources that can be sacrificed in the pursuit of money.  In pursuing that awesome profit, today's Microsofts will do anything to prostrate before the Chinese government.

Facebook created a censorship tool it did not use and released an app in the country without putting its name to it. Apple is moving data storage for its Chinese customers into China and last year took down software that skirts China’s internet blocks from its China App Store. Google recently said it would open a new artificial intelligence lab in the country.
Often, these companies have little recourse when pressured for help by Beijing. Going to the American government could set off retaliation from China, so many have sought to navigate the situation on their own.

You see how faithful these profit-concerned companies are in complying with the Chinese government's maniacal approach, but then pretend that they are vanguards of human rights when they present themselves to the people in democratic societies?

“When I talk about technology and the internet, people normally pine for them and look forward to a future that will promote liberalization,” Mr. Sui said. “But people neglect the fact that modern authoritarianism also rises with the development of technology, which makes wider and deeper control possible.”

The good thing for Microsoft is that despite the fascist, the US continues on with the rule of law.  Because I value the rule of law, and because I value human rights, I want Microsoft to win the battle against the Justice Department. But, otherwise, please!

Srikanth "Sri" Srinivasan as Antonin Scalia's replacement?

With Justice Scalia's sudden demise, there is intense speculation on the replacement.  A name that seems to pop up in most commentators' list: Srikanth "Sri" Srinivasan

Nearly three years ago, when Srinivasan was in the news, I authored an op-ed in the Register Guard; am re-posting it here:

Srikanth "Sri" Srinivasan received an overwhelming Senate confirmation as a judge for the U.S. Court of Appeals for the District of Columbia Circuit, and was sworn in on June 18th.  The Senate confirmed his appointment with a 97-0 vote.  Yes, this same current Senate, where bills routinely go to die, found his credentials to be so compelling that apparently they had nothing but congratulatory remarks.  Who would not want to be loved thus?

Srinivasan is the first Indian-American, and the first South-Asian too, to have reached that stratified judicial atmosphere.  Further, with the commentary on the DC Circuit Court as a springboard for nominations to the Supreme Court, and with all the uniformly lavish praise for Srinivasan, there is a distinct possibility that he could very well become the first Indian-American justice at the highest court of the land.  Is it any surprise at all, therefore, that Srinivasan’s ascent did not go unnoticed not only by Indian-Americans like me, but even in my old country?  It was a judicial appointment that echoed all the way on the other side of the planet.

Many of the biographic sketches that accompanied the reports on his nomination included the name of the village in southern India where his family roots are--Mela Thiruvenkatanathapuram.  Try that for a tongue-twister!  When I learnt from a Google search that this village could be located very near the village where my father grew up, I called him up right away.  Indeed, the two villages are not that far apart and are located along the banks of the same river, Thamirabarani.  

The Thamirabarani at Srivaikuntam

Father added that there was extensive coverage of the nomination in the newspapers and on television.  He joked that we were not related to the Srinivasan family, but it seemed that father was a tad disappointed over that!

Srinivasan was born and raised far from this small village, in the northern part of India where his father, T.P. Srinivasan, was on the faculty of the University of Punjab.  Sri Srinivasan was four years old when the family immigrated to the United States as a result of his father taking up an academic position initially at Berkeley, before moving to Kansas.  I would imagine that an immigrant Indian family in Kansas in the early 1970s would have been quite an exotic addition.

My excitement about Srinivasan is not at all about identity-politics.  The intention is not to categorize and count the population by the respective hyphenations and demand any proportional representation.  Instead, it is a profound appreciation for this adopted country of mine where it matters very little anymore where we came from.  My excitement about Srinivasan is to celebrate the fact that one can come to the United States from any corner of the world and potentially become a Supreme Court judge.  

In a country where even only a couple of decades ago life was not easy for those who were not White Anglo Saxon Protestant, it is simply fascinating how different the contemporary landscape is.  In the current Supreme Court, three justices are Jewish and the rest, including the Chief Justice, are Catholic.  While we might have our own disagreements with the court’s opinions, we attribute those differences to legal interpretations of the Constitution that might be colored by politics.  The religious backgrounds of the justices do not matter to us. What a remarkably healthy change this is over the years past.   

If Srinivasan were to join the Supreme Court to fill a vacancy created by the retirement or demise of a current justice, he would then become the first who was raised in a religious background outside of the Judeo-Christian beliefs.  It is almost impossible to believe that a mere ninety years ago, a Supreme Court justice refused to speak with Louis Brandieis and sit with him for the court’s official portrait because Brandies was Jewish, and now it is entirely possible for one of Hindu origin to join that very court!  To borrow the comedian Yakov Smirnoff’s line, “America, what a country!”

With Srinivasan, we have yet another evidence that the Indian-American group is more than Spelling Bee champions, and math and science nerds.  There are Indian-Americans in movies and television shows, in the literary and corporate worlds, and even as animated fictional characters like Apu in “The Simpsons.”  If only there were a Cy Young award-winning Indian-American pitcher--and a southpaw at that--to complete the all-American composite image!

It depends upon what the meaning of the word 'is' is

Often, I wonder why venture into reading something that I have no business reading about.  It happened, yet again, today.  And this time it is about a lawsuit that will be settled by the US Supreme Court.  I am no constitutional lawyer, neither am I neck deep in political theory or philosophy, but I was drawn to reports on the lawsuit like a drug addict is ... oh wait, I have no idea what a drug addict feels; I better stay away from bullshitting about that then! ;)

The case is scheduled to be heard tomorrow, Tuesday the eighth of December.  Mother Jones, which is no friend of the GOP, puts it this way:

On Tuesday, the Supreme Court will examine the bedrock principle of "one person, one vote" in a major case that could yield the Republican Party a critical advantage in future elections.

So, what's going on, you ask?

Texas residents Sue Evenwel and Ed Pfenninger want the court to create a uniform national standard for drawing legislative districts based on the total number of eligible voters in them, as opposed to the total number of people, which is the standard that Texas and many other states use now.

Mother Jones lets us know what it thinks about the plaintiffs:

The plaintiffs behind this high-stakes legal challenge are an unusual pair. One is a Texas tea party activist who has promoted a conspiratorial film suggesting President Barack Obama's real father was Frank Marshall Davis, a supposed propagandist for the Communist Party. The other is a security guard and religious fundamentalist who believes the Earth doesn't revolve around the sun and that unicorns were real.

Wait, what?

Can somebody closer to the center, from the other side, explain this, please?

on December 8th the Supreme Court will consider a fundamental question it has elided in previous rulings: When states draw electoral districts, who should they consider to be the population that is being represented? Is it the eligible voters who count—a category that excludes non-citizens, children and felons, among others? Or is the total population—including people who are not eligible to vote—the right metric?
The parties’ briefs in Evenwel v Abbott give the impression that the question may be best addressed in a university seminar room. The dispute in those pages has the air of a dry academic exercise, with few glimpses into the political issues involved. But to pick up the many amicus (friend-of-the-court) briefs on both sides is to see the centrality of the case to the real-world jockeying of America’s political parties. The stakes of Evenwel are potentially huge, and it appears that Democrats have the most to lose.

Wait, what?  When even the Economist notes that "Democrats have the most to lose," isn't it time for people like me to run to the jungle and stay holed up in a cabin?  Any other take?

The change would produce a political earthquake. Eligible voters as a group are older (no children under 18, to begin with), wealthier, and more Republican—and, even more important in Texas, whiter and more Anglo—than the population at large. Many people in the Southwest—both legal residents and undocumented immigrants—are not citizens. Under the proposed Evenwel rule, only those eligible to vote count.

Crap, that does not help!  Back to the Economist then:

 Nine unelected judges hold in their hands a fundamental question of American democracy that could alter the political terrain for decades to come.

Oh my freaking lord!  When even a junkie like me did not know about this case until now, ... Gimme some hope.  Somebody. Anything to grasp, please.

Victory for the plaintiffs seems unlikely, however. The Court is hearing this case not so much out of choice but because, as a direct appeal from a three-judge court, it can’t just refuse. Whether it heard arguments or not, its decision would set a precedent. And the plaintiffs are on shaky ground. They are in essence asking the Court to open itself up to a decade or more of hell adjudicating its new rule. Consider this soothing phrase from their brief: “This appeal need not resolve every implementation issue.” Indeed. A rule basing districts on “eligible voters” would be a nightmare to administer, with district courts around the country required to find information about eligible voters—information that’s not available anywhere.
As an amicus brief for a group of former directors of the Census explains, “there is no actual count of the number of voting age citizens.” The Census counts the number of people in the country. The only systematic information about citizen population is a sample, like a voter poll in other words, taken by the Census. And that sample is too small to produce a reliable estimate of citizens in a given district, the former officials warn: “Adequate data to support Appellants’ positions simply do not exist.”

Oh well.  The umpire is not really an umpire at all! 

Let them eat cakes!

It appears that Kim Davis has exhausted her fifteen Andy Warhol minutes.  She might be gone from our news radars, but the struggle between faith-based personal values versus the larger collective, social policies will continue on for a very long time.

Here in the US, we might struggle through the issues, yes.  As that cigar-chomping English racist remarked, Americans will always do the right thing, only after we have tried everything else.  Makes me wonder why we always have to take the long, long, long road to do the right thing.

But, at least here we end up doing the right thing.  I increasingly worry that the trend in the old country is one of doing the wrong things.  Today's exhibit:  vegetarianism.

Of course, this is not the first time that I am blogging about the vegetarian existence.  But, here is an important distinction to keep in mind: I don't make an "ism" out of a preferred way of life.  The moment an "ism" is framed, it immediately leads to an us-versus-them, which is what is rapidly unfolding in India.

The problem is that when vegetarianism—and what you eat in general—is associated with morality, it serves to strengthen distinctions, marking class, education and other indicators of status.

Any holier-than-thou approach, especially in the political space, is bound to be disastrous.

In a national landscape moving towards a narrow definition of what it means to be Indian—specifically, Hindu and high caste, and specifically not Muslim—such distinctions have potentially serious consequences.

Ah, yes, the caste issue comes up again.  The religion issue comes up again.  And you thought food is an easy topic, eh!

We can already see its effects in cities such as Mumbai, where the discourse of purity and pollution around what you eat is so powerful that certain groups are denied access to the housing market on account of their dietary choices. If you belong to the “non-vegetarian” groups—including anyone from Muslims to Christians to Maharashtrians to Dalits—it can be difficult to purchase or rent an apartment. Potential buyers are turned away, presumably, because smells from their kitchen might pollute a neighbour’s flat. With vegetarianism used as a distinguisher between “us” and “them”, Mumbai is becoming an increasingly hostile place for religious minorities.

The struggle will not be resolved anytime soon in the old country.  Nor here in the US.  When individuals claim that their "faith" prevents them from supporting a commercial transaction, societies will have quite a struggle trying to resolve the incompatibility between a secular political democracy with those faith-based practices.  Here in the US, chances are high that the food fight will end up in the Supreme Court.  Remember the bakery here in Oregon that refused service to a same-sex couple?  The baker in Colorado?

The ACLU (yes, I am a card-carrying member) argues:

There’s a growing body of court decisions saying that while religion is central to what makes America America, religion can’t be used as an excuse to discriminate

The other side argues:

Government has a duty to protect people’s freedom to follow their beliefs personally and professionally rather than force them to adopt the government’s views

Here it is cakes.  There it is meat.  All I know is this: we Americans will always do the right thing, only after we have tried everything else.  I can't say that about the old country, however.

Can Indian-Americans play ball?

(Have sent this across to the RG editor)

Srikanth "Sri" Srinivasan received an overwhelming Senate confirmation as a judge for the U.S. Court of Appeals for the District of Columbia Circuit, and was sworn in on June 18th.  The Senate confirmed his appointment with a 97-0 vote.  Yes, this same current Senate, where bills routinely go to die, found his credentials to be so compelling that apparently they had nothing but congratulatory remarks.  Who would not want to be loved thus?

Srinivasan is the first Indian-American, and the first South-Asian too, to have reached that stratified judicial atmosphere.  Further, with the commentary on the DC Circuit Court as a springboard for nominations to the Supreme Court, and with all the uniformly lavish praise for Srinivasan, there is a distinct possibility that he could very well become the first Indian-American justice at the highest court of the land.  Is it any surprise at all, therefore, that Srinivasan’s ascent did not go unnoticed not only by Indian-Americans like me, but even in my old country?  It was a judicial appointment that echoed all the way on the other side of the planet.

Many of the biographic sketches that accompanied the reports on his nomination included the name of the village in southern India where his family roots are--Mela Thiruvenkatanathapuram.  Try that for a tongue-twister!  When I learnt from a Google search that this village could be located very near the village where my father grew up, I called him up right away.  Indeed, the two villages are not that far apart and are located along the banks of the same river, Thamirabarani.  

The Thamirabarani at Srivaikuntam

Father added that there was extensive coverage of the nomination in the newspapers and on television.  He joked that we were not related to the Srinivasan family, but it seemed that father was a tad disappointed over that!

Srinivasan was born and raised far from this small village, in the northern part of India where his father, T.P. Srinivasan, was on the faculty of the University of Punjab.  Sri Srinivasan was four years old when the family immigrated to the United States as a result of his father taking up an academic position initially at Berkeley, before moving to Kansas.  I would imagine that an immigrant Indian family in Kansas in the early 1970s would have been quite an exotic addition.

My excitement about Srinivasan is not at all about identity-politics.  The intention is not to categorize and count the population by the respective hyphenations and demand any proportional representation.  Instead, it is a profound appreciation for this adopted country of mine where it matters very little anymore where we came from.  My excitement about Srinivasan is to celebrate the fact that one can come to the United States from any corner of the world and potentially become a Supreme Court judge.  

In a country where even only a couple of decades ago life was not easy for those who were not White Anglo Saxon Protestant, it is simply fascinating how different the contemporary landscape is.  In the current Supreme Court, three justices are Jewish and the rest, including the Chief Justice, are Catholic.  While we might have our own disagreements with the court’s opinions, we attribute those differences to legal interpretations of the Constitution that might be colored by politics.  The religious backgrounds of the justices do not matter to us. What a remarkably healthy change this is over the years past.   

If Srinivasan were to join the Supreme Court to fill a vacancy created by the retirement or demise of a current justice, he would then become the first who was raised in a religious background outside of the Judeo-Christian beliefs.  It is almost impossible to believe that a mere ninety years ago, a Supreme Court justice refused to speak with Louis Brandieis and sit with him for the court’s official portrait because Brandies was Jewish, and now it is entirely possible for one of Hindu origin to join that very court!  To borrow the comedian Yakov Smirnoff’s line, “America, what a country!”

With Srinivasan, we have yet another evidence that the Indian-American group is more than Spelling Bee champions, and math and science nerds.  There are Indian-Americans in movies and television shows, in the literary and corporate worlds, and even as animated fictional characters like Apu in “The Simpsons.”  If only there were a Cy Young award-winning Indian-American pitcher--and a southpaw at that--to complete the all-American composite image!

SCOTUSblog on ObamaCare: The way to get news

At about a minute before 7:00 am, Pacific Time, I tuned into SCOTUSblog, which has long been my source for understanding in plain English what the highest court delivers in legalese.  The wonderful folks there did it, again.  Like with this plain speak at 7:32:

Amy Howe: In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding. 

Reports were that at one point, the live "readership" at SCOTUSblog exceeded half a million!  Who cares for CNN or MSNBC or Faux Noose or CBS or ABC or .... 

Obamacare overturned in a 5-4 vote. Game over!

So, if the court does end up overturning it--partially or completely--in a 5-4 vote as projected by this team, will it affect the credibility, or even the legitimacy, of the Supreme Court?  But then (ht):

Who, after all, is going to lead the charge against the Court?  Liberal journalists like Linda Greenhouse and Dahlia Lithwick, whose human capital is invested in covering the Court?  The fraternity of elite liberal  lawyers who served as Supreme Court clerks, for whom undermining the Court’s legitimacy means undermining the value of their own prized credential?  Liberal constitutional law professors, who are as invested as anyone in the Court’s significance?  (It’s hard enough to get people to read one’s latest article on “A Kantian/Weberian Approach to the Fourth Amendment” when the Court is as important as it is now!)  Liberal activist groups and think-tankers, who still treasure the Court’s rulings on abortion, due process rights for terrorism suspects, term limits, and more, and who hope that a future Court will recognize a right to gay marriage?  Liberal Congressmen, when Congress’ popularity rating is well below the Court’s, and who have hardly shown themselves to be constitutional scholars? (Not to mention that journalists like Lithwick are on record suggesting that it’s “weird” for members of Congress to be considering the constitutionality of legislation.  “Isn’t it a court’s job to determine whether or not something is, in fact, constitutional?” wrote Lithwick.)
At most, a ruling against the ACA will have the same effect as Bush v. Gore or Citizens United, or Roe v. Wade and Boumediene for that matter; a fair amount of caterwauling, with the Court as an institution remaining unscathed.

I can't imagine any legitimacy issues even if the court overturns the entire act: most Americans don't ever seem to be bothered to understand that the court is the third leg of the government stool and, therefore, don't pay much attention to it anyway.  An overturning will merely translate to Obama's and the Democrats' electoral losses, and the Republicans look at enormous setbacks if the court ends upholding the law if both Kennedy and Roberts end up siding with liberal bloc.

Quote of the day: on the party of NO

At a Senate Judiciary Committee hearing:

[Lindsey] Graham asked them how many votes they received at their confirmations.
"Ninety-eight," Scalia said.
"Eighty-seven," Breyer followed.
With that, Graham had made his point to his colleagues.

Interesting, right?  Justice Scalia who gets on most Democrats' nerves every single time was practically unanimously confirmed.  Then later during Clinton's tenure, when obstructionism seriously began, Breyer's confirmation generated a lot more no votes.  And now, we are pathetically down to party-line voting, to oppose for the sake of opposing.

The context for Graham to ask that question was this:

One of the sole Republicans to have voted in favor of both Sotomayor and Kagan, Graham looked directly into C-Span's cameras on Wednesday to tell those watching that nominations are a "political decision" and, accordingly, the Senate should accept the consequences of elections and vote for competent judges even if their philosophies don't line up with those of the senator's political party.

 
Good luck with getting that idea across to the Grand Obstructionists Party.

Dahlia Lithwick writes that the joint appearance by Breyer and Scalia is all the more the evidence that the US Supreme Court proceedings ought to be televised:

the two justices killed before the Judiciary Committee, raising the question anew: Why don’t they do this every week? Why are they hiding this great light under a marble bushel? A new Gallup poll shows that the Supreme Court’s approval rating is at a nearly historic low—only 46 percent of respondents approve of the high court, while 40 percent disapprove. That’s a 15-point drop from the recent high of 61 percent in 2009. Politico notes that the lowest approval recorded by Gallup was in 2005, at 42 percent.

On the one hand, the justices of the court shouldn’t care what the polls say. On the other, they really do. And Wednesday’s outing—proving that even ideologically opposed justices can riff about the Constitution, agree about more than they disagree, and call each other “Nino” and “Steve”—can only reassure the American public that there is nothing fearsome, elitist, or threatening about the courts.