Toyah

I've wanted to comment on several of Phil's Toyah posts today but can't get Blogger's comments to load.

Anyway, the article by the Harvard grad particuarly resonates with me, as I was also born very early and was on pure oxygen for awhile. It did, in fact, do some brain damage: I was very lucky because all that was damaged were some of the nerves that control the up-and-down motion of my left ankle. I'm told my running stride is a bit odd, but that's the only remaining evidence. In other words, I could have easily ended up in the situation of this Harvard grad, or, in the same vegative state as Terri Shiavo.

My opinion of the Shiavo case is a) it doesn't involve me so why should I care? B) for various reasons, I've more-or-less been forced to come to some opinion. Legally, it seems to me that Michael Shiavo has the right to remove the feeding tube. The "murder" argument that supporters of Terri Shiavo advance has some legitimacy, but in my mind there is a difference between actively terminating a life and removing life-support (I suppose that means, passively terminating life). Morally, as I think I said before, I simply don't know what the right answer is.

Part of me feels a bit guilty that I tend to tend to side with Michael Shiavo (to the extent that I side at all, which is quite weak) than with his parents, because I could, by a not-so-great change of circumstances, be siding with those who would've wanted to remove my own life support.

All of which means that we are, nationally, debating not just life, but "meaningful" life. I have never supported the idea that "damaged" fetuses should be aborted because they won't be able to have a meaningful (or, in other possible terms, "good" life). So I am a bit puzzled why I seem to have less of a moral issue with removing life-support from someone like Terri Shiavo because she has no chance of recovering. Perhaps because it's not a polarized issue like abortion is? As I say, my opinion of this case seems to be evolving, and my thought progress is rather fascinating to the objective side of me.

Powerline points us to a well-written article by a Harvard student on the bigotry inherent in the "die with dignity" folks' presumtions about Terri and others with cognitive disabilities. Powerful stuff. We are on the brink of something big.

Update: A friend has an article today on the American Enterprise Magazine online. Also worth a look.

Remnants of a bridge built during the American war for independence have recently surfaced at Lake Champlain near Fort Ticonderoga.

Historians say the bridge was constructed in March and April of 1777. Thousands of huge pine logs were skidded onto the ice and notched together; weighed down with rocks, these caissons sunk to the lake bottom through holes the soldiers cut in the ice.

By spring 22 caissons, some up to 50 feet tall, reached the lake's surface. They were joined by a 16-foot-wide deck that linked Fort Ticonderoga in New York and Mount Independence in Vermont.

The American troops were soon forced to use the bridge they had built. In July 1777, they fled the British army that was bearing down on Fort Ticonderoga.

Remarkable! Anyone up for a road trip?

Legal Times has a recap of today's argument and concludes that the the "Medellin case is a muddle." See also this Reuter report: Supreme Court may not decide case of Death-Row Mexican. It appears the Court may decide that the case is not ripe for decision and dismiss the appeal. The present concern: the President's directive to state courts is the subject of a new habeas petition in Texas courts on Medellin's behalf. Of course, this may only postpone rather than preclude a SCOTUS determination.

The LT article mentions the Justices’ reaction to the substantive issues in the case, and I think their own self interest will weigh against their giving up power to a foreign court, despite their penchant for citing them. I think this one is far from over, and I will try to reference any future developments.

For even more on the argument, check out SCOTUSblog and the AP.

Oh, and for my northern friends, Medellín is pronounced me'de-yeen'.

The Supreme Court is hearing arguments today in the case Medellin v. Dretke, No. 04-5928. The issue is a complicated one in which a Mexican citizen, Jose Medellin, brutally raped and killed a Texas woman and was subsequently sentenced to death. The problem is that Medellin was not informed of his right to consult with the Mexican consul pursuant to the Vienna Convention on Consular Relations, of which the U.S. is a signatory. Mexico typically provides representation and other aid for the defense of its nationals. Mexico has brought appeals to both Texas and federal courts on Medellin's behalf, all of which have been rejected because Medellin failed to raise his objection at trial (i.e., he failed to preserve the objection) and has thus waived it. In response, Mexico went to the International Court of Justice in the Hague, which is charged with interpreting the treaty, and the ICJ responded that Texas and other U.S. states must reconsider Medellin's and 50 other's cases to determine whether failure to notify the defendants of their consular rights caused harm.

Texas rejects that the ICJ has jurisdiction to tell Texas or U.S. courts how to do anything, and the case is before the Supreme Court today. The arguments are that vesting the ICJ with binding judicial power would violate Article III as well as the Appointments Clause. In addition, though treaties are the "supreme Law of the Land" under Article VI of the Constitution, so are laws of the United States, and Texas says that the Anti-Terrorism Effective Death Penalty Act (AEDPA) modified the United States' obligation under the treaty. Finally, Texas argues that the Vienna Convention provides only for diplomatic remedies for violations of the treaty.

In an bizarre twist, the President has sided with Texas on the legal issue, but he has also issued what is probably best thought of as a directive to the states instructing them to review the cases. Texas claims that it is not within the constitutional power of the President or any other branch to tell the states how they must interpret their laws when constitutional rights are not at issue. Not surprisingly, I side with Texas.

Texas Solicitor General Ted Cruz is arguing the case today for Texas. CSM and NPR(audio) each have decent reports. Also, Senator John Cornyn (R-TX) has an article at National Review on the issue. Cornyn has also submitted an amicus brief. Cornyn's arguments are essentially the same as Texas'.

For my part, I understand that the United States benefits from the Convention in that our own citizens have access to our consuls abroad, but there are limits, and here the limit is our own procedural law and the Consitution. Perhaps the proper remedy is diplomatic; Mexico can lobby the Governor or President for a pardon or commuted sentence. It will be interesting to see how the justices react to the parties in today's arguments.

UPDATE: There are several reports out there on how today's argument went. I will discuss them in a separate post later today.

Very interesting analysis of the Navy's fleet reorganization, in response to the new conditions of terrorism-fighting. It's actually a force-response reorganization. The Cold War model was to have 1/3 of the fleet deployed, 1/3 being refitted, and 1/3 in training.

The new Fleet Reponse Plan (FRP) calls for:

The FRP provides the nation six aircraft carrier strike groups deployed or ready to deploy within 30 days and another two aircraft carrier strike groups ready to deploy within 90 days. Commander Fleet Forces Command, based at Norfolk, Va., is leading the implementation of FRP across the Navy.

[Secretary of the Navy Gordon R.] England is committed to leading the service in alignment with a National Defense Strategy that measures success based on the “10-30-30” metric. That measurement defines the goal for closing forces within 10 days, defeating an adversary within 30 days and resetting the force for additional action within another 30 days.

Imagine that...the Navy is changing its force structure so that it can fight a war every 70 days. Every two months, in other words. Such a situation is certainly not unimaginable: what if China had attacked Taiwan while we were engaged in Iraq or Afghanistan?

And the new FRP is already working:

During the exercise Summer Pulse ’04, the Navy proved it could employ forces based on the FRP. With no more than 30 days notice, the Navy deployed seven aircraft carrier strike groups.

Amazing, really. Change is always hard, and pro-active change is hardest. I'm proud of our Navy, and the military in general, for taking the initative and thinking ahead, changing where necessary.

The Internet can bring you perspectives impossible to get from any other media. For example, this morning my friend Milka, who lives in Belgrade, posted this in her Live Journal. I thought she said it well, and that Toyah readers would appreciate her memory, so with her permission, I'm reposting it here.

---------

On the 24th of March 1999. NATO started to bomb my country. I was 10 years old, scared and confused, not being able to understand why people wanted to hurt me, my family and my friends.

I remember spending many nights in shelters with other kids, hiding from the bombs, while my dad had to work because he was a doctor. Every single night I would pray that he would come home alive in the morning. And, thankfully, he did.

We were tired of running from our apartments to the shelters every day... We didn't have much sleep... We kept living in anticipation of what might happen next... and we only had hope to grasp at taht they wouldn't strike our building or nearest ones.

It definitely wasn't easy living like that... but as the time went by, and the bombing didn't seem to finish, I, as well as many other people, started to get used to it. We learned how to laugh again, play [hide & seek] and get closer in those shelters and, no matter how absurd it might sound to you who have never experienced anything similar - we had great times down there. I remember a young woman playing the guitar for us and how we would gather round and sing. Yes, we actually sang. Believe me, music takes the pain and worries away. It is not only a metaphore.

Who knows... Maybe it was the fact I was too young and not really aware of what might have really happened to us all... or maybe it just proves the authencity of that old saying: People get used to everything... But -- we somehow learned how to live that way.

The bombing ended on 9th of June 1999. We could finally breath freely without constant howling of sirens or thundering of detonations.

Six years later, the feeling is just... plain... weird. It all seems so far away and blurry now -- as if it was a dream and had never even happened. The photos, videos, and scribblings in diary stayed, not letting me forget it. In the end, one thing is for sure -- if it were to happen again, I know I wouldn't be able to bear it the way I did when I was a little girl of only 10.

This is cool: it's the Payton coat-of-arms. My dad's mom was a Payton:

---------
Spelling variations include: Peyton, Payton and others.

First found in Suffolk where they were seated from very early times and were granted lands by Duke William of Normandy, their liege Lord, for their distinguished assistance at the Battle of Hastings in 1066 A.D.

Some of the first settlers of this name or some of its variants were: George Peyton settled in Virginia in 1748; Anne Peyton settled in Virginia in 1761; along with her husband Edward; Henry Payton settled in Virginia in 1623.
-----------

I was always more sympathetic to Harold and the English than to William and the Normans. Fortunes of war and all that, I suppose. On the down side, this makes me partly French. On the upside, they were Normans, who were certainly not wimps.

An ABC news poll says that about 7 of 10 Americans think Congress
should sit out the Schiavo case. And two-thirds say the
political leaders are using her case for political advantage.

Personally, I'm sick of the whole "drama." I don't see how this is
national news, and furthermore, I don't think it is anyone's business
other than her husband, her parents, and the judges in the Florida
courts. It doesn't matter what the rest of us think, and it's certainly
not the business of the U.S. Congress or the President (do they not have
anything more important to talk about?).

I'm also concerned about the precedents being unintentionally set here,
particuarly in terms of federalism: this seems to be clearly an issue
that is wholly and purely within the state of Florida. So by
justication should Congress get involved? Are federal courts somehow
wiser than state courts? Congress should be handling those things that
the states are incompetent to handle: the Florida judicial system
appears to be perfectly competent to handle this problem.

If Congress is acting for political advantage, it's interesting that the
voters don't buy it, at least according to this poll. There's another
two years until the next congressional election---do they really expect
voters to remember this and let it seriously affect their choice, next
time?

Edit: Eugene Volokh says it better than I do (what a surprise!)

Another edit: Some questions about ABC's polling methods: briefly, ABC told respondents that Shiavo was on "life-support", but in fact she was only on a feeding tube, not a ventilator. Captain's Quarters says that is not life-support and that, therefore, the questions were invalid. I'm not so sure: the technical definition of "life-support" may include a ventilator, but if she couldn't live on her own, then the tube was certainly supporting her life, and common understanding (as opposed to the medical definition) would understand the feeding tube to mean "life-support", it seems to me.

no, not survivor or fear factor....

i'm talking about the kind of reality tv that ends in a score with highlights to follow on sportscenter. BRACKETS! March Madness!

yesterday my brackets were far from perfect, but the effect on the second round were minimal, so, with the weighted points for the future rounds, my cash winnings are still in sight.

also, c-span had an opportunity to catch my attention for once, but they didn't show the hearing on steroids and baseball, so i watched espn's coverage.

it was a great day to have off. the only thing that could have made it better would have been some crappy weather. that way i wouldn't have felt so bad about staying inside watching tv all day.

In Germany yesterday, singer Michael Regener of the band "Landser" was sentenced to three years prison for inciting racial hatred. The German Supreme court ruled that the band, known for its controversial lyrics was in fact, a criminal organization. They were referred to as "Terrorists with Electric-Guitars" and it was said that they wanted to "write the soundtrack of the Aryan Revolution."

While these people are extremists and I disagree with them, I can't imagine any American band or singer like Emenem or Marilyn Manson getting anymore than some bad press over controversial lyrics.

http://www.cbc.ca/storyview/MSN/world/national/ 2005/03/10/NaziRockGroup-050310.html

http://www.berlinonline.de/berliner-zeitung/politik/429416.html

Democrat Senators in the United States Congress have been exceptionally cantankerous with President Bush's judicial appointments, filibustering any they think have any hint of conservative ideological opinion. Several friends of mine have been working hard to restore the constitutional role of the Senate in the confirmation process and two recent opinion pieces in the Washington Post and NY Times by Texas Senator John Cornyn are some of the product of their work. Here they are:

Washington Post
Let the Senate Majority Rule
Friday, March 11, 2005; Page A22

In his March 4 op-ed column, " 'Nuking' Free Speech," Sen. Robert C. Byrd (D-W.Va.) voiced his opposition to a plan to restore Senate traditions and the constitutional authority of a majority of senators to confirm the president's judicial nominees.

He said that restoring this Senate tradition could "destroy the Senate's very essence -- the constitutional privilege of free speech and debate." But history -- and Mr. Byrd's own actions -- prove otherwise.

In 1979 Mr. Byrd concluded that "Congress is not obliged to be bound by the dead hand of the past," that senators can "change an abominable rule by a majority vote" and that "it is in the interests of the Senate and in the interests of the nation that the majority must work its will." He also led the creation of precedents in 1977, 1979, 1980 and 1987 to stop filibusters and other delaying tactics previously allowed under Senate rules or precedents.

Mr. Byrd's use of such tactics did not stifle free speech then; exercising Senate powers he pioneered will not stifle it now. It is past time to restore Senate traditions and to ensure that the rules for confirming federal judges by majority vote remain the same, regardless of which party controls the White House and the Senate.

JOHN CORNYN
U.S. Senator (R-Tex.)
Washington

NY Times
Filibusters, Then and Now
Thursday, March 10, 2005; Page A26

To the Editor:

"The Senate on the Brink" (editorial, March 6) supports the "historic role of the filibuster," which is a curious position for a newspaper that 10 years ago said filibusters were "the tool of the sore loser" and should be eliminated ("Time to Retire the Filibuster," editorial, Jan. 1, 1995).

Federal judicial appointments have certainly been controversial, but surely all Americans can agree that the rules for confirming judges should be the same regardless of which party has a majority.

Now you praise the filibuster as a "time-honored Senate procedure." In 1995, when Bill Clinton was president, you called it "an archaic rule that frustrates democracy and serves no useful purpose."

You disparage the Republicans' view that 51 votes should be enough for judicial confirmation. Yet the 51-vote rule is a consistent Senate tradition. By calling for an end to filibusters, the Senate is simply contemplating restoring its traditions by traditional methods you disparage as "nuclear," even though they were once endorsed by such leading Democrats as Senators Edward M. Kennedy, Charles E. Schumer and Robert C. Byrd.

John Cornyn
U.S. Senator from Texas
Washington, March 7, 2005

I think most folks expect the Supreme Court nomination machine to gear up around late April, and I would expect a Rehnquist resignation to be followed with the appointment of Justice Thomas to the post of Chief Justice and an appointment of Miguel Estrada to fill the vacancy. Given the amount of media attention attendant on a Supreme Court vacancy, as opposed to one in the courts of appeals, the Democrats will be hard pressed to hold up the first ever Hispanic nominee to the Supreme Court. If they do, we have the constitution on our side, and we shouldn't be afraid to use it.

Austin’s annual South-by-Southwest (SXSW) Music, Film, and Media festival starts tomorrow. Among films premiering at SXSW is Owen and Luke Wilson’s indie film, The Wendell Baker Story (more about the movie and festival at Austin360) (full film schedule). For those who love live music, a $150 wristband buys access to numerous venues and hundreds of bands, including Billy Idol, The Donnas, Elvis Costello, Cowboy Mouth, Fatboy Slim, Erykah Badu, and Vanilla Ice. How can you resist? (Full band schedule) I think wristbands are sold out, but there are always ways to see bands you really want to see.

ALSO, Spring is coming to Texas. The weather is a sunny 75 degrees, and blue bonnets and other wild flowers are beginning to make their presence known in Austin parks and on hillcountry highways, and I'm outta here for Spring Break on Saturday. Life is good!

Doing my part to promote all things Texas!
Visit Texas Highways Magazine and TravelTex for more.

Do any of you knowledgeable readers out there know what a “post-liberal” church is? A friend has mentioned that he knows someone looking for such a church and he didn't know what that church would look like. I confess that I don't either, though I somehow suspect that it is the type of church Bill Bradley or Tony Blair would attend. Anyone have any knowledge of this topic?

This seems about right, to me. One of the reasons I supported all of the Bush Administration's efforts in the Middle East---from the invasion of Iraq to the attempted marginalization of Yassar Arafar---was my belief that the previous attempts at a peace process and "working with" the status quo was a total failure. In fact, those previous attempts had resulted, among other things, in 3,000+ dead Americans on Sept. 11th.

So I figured that pretty much any kind of different strategery would have a better shot at success than what we had been doing, in the Middle East. I find it rather interesting, about myself, that despite my generally conservative and democratic credentials, I didn't really take Bush's pro-democracy plans all that seriously either, any more than his critics did. I was more cynical: I had forgotten how powerful the idea of democracy is, and I merely hoped that a different strategy might work better. It could certainly do no worse.

But it's quite true that democracies don't start wars with each other. Probably there are cases of democracies fighting democracies in history, but I can't think of one off-hand, certainly no major war in recent memory. Democracy is, as Churchill said, the worst kind of government, except for all the others. But, it does tend to produce things like peace and stability and tolerance. Good things, yes? Let's hope, for the sake of the Israelis and Palestinians and Iraqis and Ukranians and Lebanese, and maybe the Syrians and the Egyptians and the Saudi Arabians---and most of all for us, too---that Bush & Co. keep up the pro-democracy push.

The most recent issue of the Texas Review of Law & Politics is finally available online. Look under "Past Issues."

I get a summary of recent U.S. Supreme Court cases in my e-mail inbox. Today I was informed of the Court's decision in Proper v. Simmons:

PROPER v. SIMMONS, No. 03-633 (U.S.S.C. March 01, 2005)
The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.

From bits that I've heard or read on the news, it appears that the basis for this case is international law (Google news sources are making a big deal of how the U.S. is (was) the last nation to abolish capital punishment for minors). I'm curious what the lawyers, or soon-to-be lawyers, who post or read Toyah think about this case. Is it good law, or not?

In the fall of 1835 many Texans, both Anglo-American colonists and Tejanos, concluded that liberalism and republicanism in Mexico, as reflected in its Constitution of 1824, were dead. The dictatorship of President Antonio López de Santa Anna, supported by rich landowners, had seized control of the governments and subverted the constitution. As dissension and discord mounted in Texas, both on the military front and at the seat of the provisional government of the Consultation at San Felipe, the colonists agreed that another popular assembly was needed to chart a course of action. On December 10, 1835, the General Council of the provisional government issued a call for an election on February 1, 1836, to choose forty-four delegates to assemble on March 1 at Washington-on-the-Brazos. These delegates represented the seventeen Texas municipalities and the small settlement at Pecan Point on the Red River. The idea of independence from Mexico was growing.
. . . .
The convention [was] held at Washington-on-the-Brazos on March 1, 1836 . . . . Forty-one delegates were present at the opening session, and fifty-nine individuals attended the convention at some time. Two delegates (José Francisco Ruiz and José Antonio Navarro of Bexar) were native Texans, and one (Lorenzo de Zavala) had been born in Mexico. Only ten of the delegates had been in Texas by 1836. A majority were from other places-primarily from the United States, but also from Europe. Two-thirds of the delegates were not yet forty years old. Several had broad political experience. Samuel P. Carson of Pecan Point and Robert Potter of Nacogdoches had served, respectively, in the North Carolina legislature and in the United States House of Representatives. Richard Ellis, representing the Red River district and president of the convention, and Martin Parmer of San Augustine, had participated in constitutional conventions in Alabama (1819) and Missouri (1821), respectively. Sam Houston, a former United States congressman and governor of Tennessee, was a close friend of United States president Andrew Jackson. Houston was chosen commander in chief of the revolutionary army and left the convention early to take charge of the forces gathering at Gonzales. He had control of all troops in the field-militia, volunteers, and regular army enlistees. The convention delegates knew they must declare independence-or submit to Mexican authority. If they chose independence they had to draft a constitution for a new nation, establish a strong provisional government, and prepare to combat the Mexican armies invading Texas.

On March 1 George C. Childress, who had recently visited President Jackson in Tennessee, presented a resolution calling for independence. At its adoption, the chairman of the convention appointed Childress to head a committee of five to draft a declaration of independence. When the committee met that evening, Childress drew from his pocket a statement he had brought from Tennessee that followed the outline and main features of the United States Declaration of Independence. The next day, March 2, the delegates unanimously adopted Childress's suggestion for independence. Ultimately fifty-eight members signed the document. Thus was born the Republic of Texas.

The convention declared all able-bodied men ages seventeen to fifty liable for military duty and offered land bounties of 320 to 1,280 acres for service from three months to one year. . . . With the declaration of independence, the chairman appointed one person from each municipality to a committee to draft a constitution. . . . The convention adopted the document about midnight on March 16.

The Constitution of the Republic of Texas was patterned after that of the United States and several Southern states. It provided for a unitary, tripartite government consisting of a legislature, an executive, and a judiciary. . . . The constitution also contained a bill of rights. An ad interim government would direct affairs until general elections were possible.

With news that the Alamo had fallen and Mexican armies were marching eastward, the convention hastily adopted the constitution, signed it, and elected an ad interim government . . . . The delegates then quickly abandoned Washington-on-the-Brazos. The government officers, learning that Houston's army had crossed the Colorado River near the site of present La Grange (Fayette County) on March 17 and was retreating eastward, fled to Harrisburg and then to Galveston Island. With news of the Texan victory at San Jacinto, the Burnet government hastened to the battlefield and began negotiations to end the war. On May 14 at Velasco, Texas officials had Santa Anna sign two treaties, one public and one secret. The public treaty ended hostilities and restored private property. Texan and Mexican prisoners were to be released, and Mexican troops would retire beyond the Rio Grande. By the terms of the secret treaty, Texas was to take Santa Anna to Veracruz and release him. In return, he agreed to seek Mexican government approval of the two treaties and to negotiate a permanent treaty that acknowledged Texas independence and recognized its boundary as the Rio Grande.

From Joseph Milton Nance, Republic of Texas, Handbook of Texas Online.

Lil’ Kim, identified by the NY Times as "a famously foul-mouthed rapper," is in court today for charges of perjury in relation to testimony she gave about a Manhattan rapper-feud shooting incident known as the “Hot 97 Shootings.” Jury selection finished up Monday and the NY Times had an interesting article on the process. Not surprisingly, several potential jurors were dismissed for holding stereotypes:

Prosecutors and defense lawyers agreed to eliminate one juror who said on a pretrial questionnaire that “a lot of them seem to shoot each other.” Another juror who was removed from the pool said that drugs and crime seemed “to be part of their culture.”

A number of possible jurors objected to the raunchy lyrics and scant clothing of Ms. Jones, who is described as the Mae West of rap music on her main fan Web site. One juror complained that she “spends a lot of money on diamonds,” and seemed “like she would do almost anything for money.” The juror was dismissed.

Judge Lynch declined to eliminate several jurors who he said had disliked Ms. Jones’s “fashion sense,” but they were struck from the pool by government and defense lawyers.

By midafternoon, a jury of five women and seven men was selected that provided a cross section of New Yorkers, including a nursing assistant, a post office window clerk and a freelance writer.

Judge Lynch told them that they could not listen to Hot 97, a major New York hip-hop and rap station, during the trial, and they all agreed that it would not be a hardship for them.