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“A Lethal Gap”

[ 31 ] January 26, 2015 |

Under existing practices, it takes four votes for the Supreme Court to grant cert, but five to issue a stay. For Charles Warner, this procedural issue turned out to be highly significant: he was executed under a death penalty protocol whose constitutionality the Supreme Court has now agreed to consider. Liptak has very valuable background on the decline of the “courtesy stay.”

The practical effects of this are potentially just a question of timing; the unwillingness of Kennedy to vote to grant the stay seems a pretty strong indication that when it comes to torture-by-lethal-injection he remains indifferent.  But it’s still an outcome that’s hard to defend.

Adding another item to her increasingly impressive civil liberties record, Sotomayor’s dissent from the decline of a stay is very much worth reading:

Petitioners’ likelihood of success on the merits turns primarily, then, on the contention that midazolam cannotbe expected to maintain a condemned inmate in an unconscious state. I find the District Court’s conclusion that midazolam will in fact work as intended difficult to accept given recent experience with the use of this drug. Lockett was able to regain consciousness even after having received a dose of midazolam—confirmed by a blood test—supposedly sufficient to knock him out entirely. Likewise, in Arizona’s July 23, 2014, execution of Joseph Wood, the condemned inmate allegedly gasped for nearly two hours before dying, notwithstanding having been injected with the drug hydromorphone and 750 milligrams of midazolam—that is, 50% more of the drug than Oklahoma intends to use. Moreover, since the District Court denied the request for a preliminary injunction in this case, Ohioannounced that it would no longer employ a similar two-drug cocktail involving midazolam and hydromorphone, which it used in a January 2014 execution during which the condemned inmate reportedly gasped and snorted for more than 20 minutes.


I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol. It is true that we give deference to the district courts. But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed. We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain. Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.

I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution. Petitioners have committed horrific crimes, and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death. I hope that our failure to act today does not portend our unwillingness to consider these questions.

Abdullah ibn-Abdulaziz al-Saud, Rest In Hell

[ 129 ] January 24, 2015 |

Pretty much what Murtaza Hussain says here:

It’s not often that the unelected leader of a country which publicly flogs dissidents and beheads people for sorcery wins such glowing praise from American officials. Even more perplexing, perhaps, have been the fawning obituaries in the mainstream press which have faithfully echoed this characterization of Abdullah as a benign and well-intentioned man of peace.

Tiptoeing around his brutal dictatorship, The Washington Post characterized Abdullah as a “wily king” while The New York Times inexplicably referred to him as “a force of moderation”, while also suggesting that evidence of his moderation included having had: “hundreds of militants arrested and some beheaded” (emphasis added).

While granting that Abdullah might be considered a relative moderate within the brazenly anachronistic House of Saud, the fact remains that he presided for two decades over a regime which engaged in wanton human rights abuses, instrumentalized religious chauvinism, and played a hugely counterrevolutionary role in regional politics.

Above all, he was not a leader who shied away from both calling for and engineering more conflict in the Middle East.

Like Atrios, I’ve never really understood the realpolitik defense for the extent of the American alliance with the Saudis. But, yes, international affairs often involves alliances with bad actors, and as we’ve learned vividly in the region declaring the House of Saud our Hitlers of the month and actively trying to depose them would probably make things worse rather than better. I’m inclined to think that nothing can justify the extent of Kerry’s praise of this brutal dictator, but perhaps there’s some reason why a more subtle message wouldn’t have served the American national interest that I’m missing.

But the way much of the media has dealt with the death of someone presiding over one of the very worst regimes in the world…there’s no possible defense for that.

Mr. Cub

[ 19 ] January 24, 2015 |

Ernie Banks, R.I.P.

He was an icon, and in addition to being immensely likable he earned the status on the field and then some. Like a lot of middle infielders, Banks had a fairly short peak. But at his best…well, even in Wrigley Field a good shortstop slugging in the .600 range is an extraordinary player. His top 7 seasons have the 4th highest WAR of all time for the position, which seems right. Let’s play two.

The Lexus and the World Salad

[ 126 ] January 23, 2015 |

If LGM fails, it will not be because of bandwidth, but because we have the lack of human understanding that can only be forged when someone you say “thank you for serving vodka in my martini and ketchup on my ham sandwich.”

If you can translate Thomas Friedman into English, there are some shiny nickels in it for you. Good luck!

The Moops Did Not Invade Spain, Orrin Hatch Every Republican Member of Congress Edition

[ 34 ] January 23, 2015 |

Orrin Hatch argued in a Wall Street Journal op-ed in 2010 that the ACA’s requirement that states set up exchanges “is not a condition for receiving federal funds.” Ian Millhiser explains the significance of this:

Nevertheless, Hatch does make an important claim about the law in his WSJ op-ed. A state’s choice to set up and operate its own exchange “is not a condition for receiving federal funds.” That is the Obama Administration’s position in King v. Burwell. It is also the correct position.

As a legal matter, Hatch’s statement has less significance than similar statements by Republican Governors Scott Walker (R-WI), Bob McDonnell (R-VA) and Dave Heineman (R-NE), all of whom have also contradicted the central claim underlying the King litigation. The Supreme Court’s decision in Arlington Central School District v. Murphy gives special significance to statements by state officials who are in the process of deciding whether to take a particular action that allegedly triggers the payment of federal funds.

Nevertheless, Hatch’s statement is significant for two reasons. The first is that he made it in the context of an op-ed whose entire purpose was to lay out the case for why Obamacare should be destroyed by the courts. And yet, even when he was engaged in this very specific task, he didn’t just fail to notice what he now claims — that the law itself gives each state the power to destroy much of the law within their own borders — he directly contracted his own argument in his King brief.

The second reason is that, under the Supreme Court’s decision in Chevron v. Natural Resources Defense Council, courts owe extraordinary deference to federal agencies’ construction of a statute unless that construction defies the law’s unambiguous text. It is hard to believe that the law unambiguously denies tax credits to people in many states when four staunch enemies of the law — Hatch, Walker, McDonnell and Heineman — all shared Barack Obama’s interpretation of Obamacare.

Which makes the fact that a minimum of three justices are going to accept the troofer reading — one they themselves rejected, just like Hatch! — while pretending that Chevron is being applied all the more abominable. In fairness, Ian doesn’t deal with the fact that there are only three people properly authorized to explain what this law means: Jon Adler and Michael Cannon after the previous ad hoc theories deployed in their fanatical campaign to get the ACA vetoed by the judiciary failed, and President, Speaker of the House, Senate Majority Leader, Secretary of State, Governor of all 50 states, and Food and Beverage Director of the Tangiers casino Jonathan Gruber. (Note: Gruber’s interpretations valid only in 2012, not 2010 or 2014.)

…and it’s not just Hatch, it’s essentially every Republican member of Congress:

In a perverse way, the absurdity of the challengers’ argument is it’s greatest strength. Because the scheme they insist Congress intentionally created was so far from Congress’ mind, it’s hard to find contemporaneous evidence that Congress absolutely didn’t mean to condition these subsidies. In much the same way, we can’t be sure that Congress didn’t mean to denominate those subsidies in Canadian dollars. A $ isn’t necessarily a $ after all.

But this familiar line of defense crumbles here. It is facially plausiblethough incorrectto posit that CBO believed subsidies would be available everywhere because it simply assumed every state would set up an exchange. But that assumption didn’t hold in April 2011. Something else must explain CBO’s 1099-repeal score, and the Republican votes that followed it. What we have in the form of this bill is clear evidence that everyone who voted for it (including every single Republican, save the two GOP congressmen and one GOP senator who weren’t present) understood the Affordable Care Act to provide subsidies everywhere.

Not A Dime’s Worth Of Difference!

[ 100 ] January 23, 2015 |

Sure, Republicans are taking over the Senate, but can you really tell the difference these days?

Wednesday was a big day for Sen. James Inhofe (R-OK). In the morning, he officially took the gavel as chairman of the Senate’s Environment Committee. In the afternoon, he took the Senate floor for a long speech about how human-caused climate change is fake.

In sum, the speech has everything. References to the oft-debunked “ClimateGate” stolen e-mail “scandal”, a poster of a Time Magazine cover from 1974 claiming an ice age is coming, and multiple references to former Vice President Al Gore. It has a mention of a survey of weather-casters who think global warming is caused by natural variation, but does not mention that weather-casters are not climate scientists. It even includes the claim that the U.N. Intergovernmental Panel on Climate Change “started” the whole idea that climate change is happening, even though the idea was conceived about 200 years ago.

Don’t worry — I’m sure the right billionaire in the Senate could get Inhofe turned around right quick. And, anyway, I’m sure Inhofe is an outlier in the sensible Republican conference.

Plutocrats: More Effective Behind The Scenes

[ 77 ] January 23, 2015 |

Tom Steyer won’t be running for Barbara Boxer’s Senate seat in California.

Steyer seems like a good guy, a committed environmentalist, but this is almost certainly excellent. news. for. Democrats.  First, as Rebecca Leber says, his money is almost certainly better spent on a variety of swing races rather than on a safer-than-safe blue seat.  And then there’s this:

Neither did Steyer, which doesn’t exactly solve that problem. When he started looking at the race, Steyer let it be known, through aides and memos, that he’d serve one term if he couldn’t get his agenda through the Senate. If carbon dioxide output wasn’t decreasing, if tax loopholes hadn’t been closed, he’d be out in 2022. His pre-campaign network was even called Team Cincinnatus, named for the dictator of the early Roman Republic who willingly gave back power as soon as his job was done.

Preemptively declaring a dramatic flounce should you, as a freshman senator, fail to achieve a very ambitious progressive agenda during a period in which the Republicans are nearly certain to control the House for 2/3rds of the time…yeah, I think this is someone the Senate caucus can really do without.

Happy Birthday Roe v. Wade!

[ 49 ] January 22, 2015 |

Links to various arguments about why Roe was correctly decided and why it matters can be found here.

Via Edroso, Mollie Hemmingway is concern-trollingly upset that a Republican abortion ban based on evidence-free “fetal pain” arguments has been briefly set aside by the House.  (Another anti-abortion bill passed today.)  The argument begins, as so many such arguments do, with a risible misunderstanding of the decision being attacked:

Today marks the 42nd anniversary of the Supreme Court legalizing abortion on demand throughout pregnancy.

Well, I happen to have Roe v. Wade right here, and:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

And, of course, if we consider Roe v. Wade as it’s been subsequently modified by the Supreme Court, many American women regrettably do not have access to “abortion on demand” at any stage of pregnancy. But Hemmingway is wrong even about Roe circa 1973.

And then there’s this:

As my colleague David Harsanyi has noted, we have a Republican Congress that doesn’t believe it’s competent enough to make a case against infanticide.

Odd — Hemmingway (absurdly) thinks that second trimseter abortions are like “infanticide.” But I must have missed the harsh criticism of the Republicans who support this legislation, which is plainly incompatible with this view. Here are the criminal sanctions in the proposed, temporarily withdrawn legislation:

Subjects individuals who violate this Act to a fine, imprisonment for not more than five years, or both. Bars prosecution of a woman upon whom an abortion is performed in violation of this Act for violating or conspiring to violate this Act.

Five years seems awfully lenient for an alleged child-murderer. And even more to the point, women who commit what Hemmingway is pretending to consider “infanticide” are subject to no criminal sanctions whatsoever. This is instructive first of all because it inescapably reflects a belief that women who obtain abortions lack moral agency. And the fact that Hemmingway does not even find the fact that women are wholly exempt from criminal sanction worth mentioning makes it clear that when she’s throwing the term “infanticide” around she’s bullshitting, which is highly offensive given the context. But let’s be frank — very few people really think that second trimseter abortions are anything like infanticide. Statutes based on this belief would be extremely unpopular and unenforceable. I know it, you know it, and House Republicans know it. Which is one reason why safe and legal abortions should be accessible to all American women.

The Sound of Silver

[ 11 ] January 22, 2015 |

separate_vocations_28In some of today’s least surprising political news:

Federal authorities are expected to arrest Assembly Speaker Sheldon Silver on corruption charges Thursday, the New York Times reported overnight.

The newspaper says it is unclear what charges the Manhattan Democrat would face but say the case stems from “payments that Mr. Silver received from a small law firm that specializes in seeking reductions of New York City real estate taxes.”

It is unclear how much Silver received, the newspaper reported.

And, while we’re here, let’s remember one of Shelly’s greatest hits:

In other news, a judge ruled yesterday that two of those former female staffers can proceed with a lawsuit against the state. The plaintiffs allege, quite reasonably, that the state — and specifically Assembly Speaker Sheldon Silver — knew Lopez was a hands-y creep and failed to protect them from him. Silver had already signed off on two settlements with former Lopez staffers so he had to know that he was a creepy scumbag.

More useful context here.

Replying to the ACA Troofers

[ 81 ] January 21, 2015 |

The government’s reply to the ACA troofers has been submitted, and as you would expect it’s devastating. Section I should be sufficient in itself — it is clear simply reading the statute properly that exchanges established by HHS are “exchanges established by the State” as the statute defines them. I’ll have more later, but a couple choice excerpts. First, I like this from the section refuting the “Moops invaded Spain” argument:

Petitioners do not deny that their interpretation of Section 36B would thwart the operation of the Act’s central provisions in States with federally facilitated Exchanges. Instead, they reverse-engineer a description of the Act’s design and history to fit their misreading of Section 36B. Petitioners insist that Congress intentionally threatened to impose a dysfunctional regime on the States in order to pressure them to establish Exchanges for themselves, and that Congress assumed that every State would comply. That notion is baseless.

First, it was well understood when the Act was passed that some States would not establish Exchanges for themselves. The very fact that the Act provides for federally-facilitated Exchanges demonstrates that “Congress thought that some States might decline * * * to participate in the operation of an exchange.” NFIB v. Sebelius, (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting).

Nicely done! I also like the conclusion of the argument summary:

Petitioners invoke “judicial fidelity to the rule of law and well-established interpretive principles.” But it is petitioners, not the government, who seek to rewrite the Act. Determining the meaning of a statute duly enacted by Congress, particularly a statute as consequential as this one, by focusing on isolated phrases divorced from textual crossreferences, definitions, and context—and with no regard for the statute’s structure and design—does not respect the rule of law. It subverts the rule of law by denying appropriate respect to the choices Congress has made in the exercise of its democratically accountable authority.

So true.

High Broderism, Once Influential Conservative Democrat Edition

[ 36 ] January 21, 2015 |

Bill Galston, the prescient analyst cryogenically frozen at a 1991 DLC meeting, has some Deep Thoughts about the SOTU:

Still, as Mr. Obama began speaking, a key uncertainty remained:  What balance would he strike between the desire to shape the political terrain for 2016 and the imperatives of governing in 2015?  The former required bold initiatives, of a kind likely to evoke sharply negative reactions from Republicans who command majorities in both the House and the Senate.  But successful legislating this year will require compromise with those very majorities.  Could he thread the needle, making the Democratic political case for next year without undermining the possibility of legislative progress this year?

Yes, in 2015 it’s very, very hard to tell if congressional Republicans would be willing to pass sensible middle-of-the-road compromises. But either way, I think that we can agree that whether it will happen will depend on the precise wording of the State of the Union address.

Meanwhile, enjoy this analysis of Galston’s middlebrow equivalent Ron Fournier.

BALLGHAZI! The Greatest Scandal There Absolutely Ever Was Except Steroids

[ 179 ] January 21, 2015 |

Look, everyone knows that Bill BeliCHEAT only won because of those times they videotaped something. Why, they were never really able to put a decent team together after that. But that was nothing compared to the scandal of the deflated balls. I don’t think there can be any question that this provided New England with their razor-thin margin of victory last week. There can only be one equitable solution — Roger Goodell, in all his impeccable integritude, must declare a last week’s game a forfeit and a victory for Indianapolis.

However! Nobody likes a tattletale, so the Colts can hardly get off Scot-free here. I think they should have a player suspended too — to pick an entirely random player off their roster, let’s say…Andrew Luck. Now, you might think this might be a major handicap heading into the Super Bowl. Not hardly! Why, as master stratgerist Mike McCarthy has proven, you should try to give your running back 20 carries a half regardless of the circumstances. Last week, he was very nearly able to win with that approach despite such formidable obstacles as “the other team turning the ball over 5 times” and “the opposition QB putting together a robust 0 QB rating after 3 quarters.” And here’s the kicker — McCarthy certainly didn’t have 3RD OVERALL PICK TRENT RICHARDSON in his arsenal. As a Seahawks fan, I am frankly terrified of the Colts grounding and pounding their way to victory — but, hey, fair’s fair.

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