Happy Wednesday.

Justice Scalia had a tough day yesterday.

Democratic Congressman Bennie Thompson went on a New Nation of Islam radio show to call Justice Thomas an "Uncle Tom" and Sen. McConnell a racist.

I expect stay requests in capital cases will get extra scrutiny after a lethal injection in Oklahoma last night left the inmate semi-conscious and convulsing before finally killing him 40 minutes later. Gov. Fallin postponed the other execution scheduled for yesterday.

Gotta love the scare quotes around "gays." And that poll. And please, I beg you, read the quotes from Buddy Smith.

Illinois Gov. Quinn's reelection race just got harder. A grand jury is looking into his anti-violence "slush fund" spending.

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Havel on Legality and Freedom

Amid the kerfuffles over Donald Sterling's ban from the NBA for life and Mozilla's firing of Brenden Eich some commenters have pointed out that it was perfectly legal for the organizations to fire/ban them so why the big whoop. Which is true - it was legal. But misses the point on why their summary expulsion and mob-driven pariah status over relatively trivial actions disturbs many of us here even if we have no love for the targets personally.

Because something being legal really tells us nothing about whether it is moral, good for society, or even just: It's just not forbidden by law. In fact many of the recent scandals noted here - IRS targeting of conservative groups, the Wisconsin John Doe witch hunts, A&E's banning of Phil Robertson, and the selective enforcement (Dinesh D'Souza) and non-enforcement (David Gregory) of laws among others - are probably all legal in the sense that that the acts per se don't violate any laws.

And yet the sum total effect of all these legal acts is to constrain the practical freedom of speech and thought for everyone not on the left and push us towards a more totalitarian society where there is no space for non-approved political beliefs or personal non-politicized speech. But it's all legal-like and each action has all the proper justifying forms and clauses.

Vaclav Havel in his 1978 essay, The Power of the Powerless, (which I just happened to be re-reading last week - okay okay re-skimming) has an excellent section where he points out how a country can a have complete system of laws and courts in which all the procedural niceties are followed and yet still be an oppressive un-free totalitarian system. Laws and a legal system by themselves aren't a very good measure of whether a society is free or not.

If an outside observer who knew nothing at all about life in Czechoslovakia were to study only its laws, he would be utterly incapable of understanding what we were complaining about. The hidden political manipulation of the courts and of public prosecutors, the limitations placed on lawyers' ability to defend their clients, the closed nature, de facto, of trials, the arbitrary actions of the security forces, their position of authority over the judiciary, the absurdly broad application of several deliberately vague sections of that code, and of course the state's utter disregard for the positive sections of that code (the rights of citizens): all of this would remain hidden from our outside observer. The only thing he would take away would be the impression that our legal code is not much worse than the legal code of other civilized countries, and not much different either, except perhaps for certain curiosities, such as the entrenchment in the constitution of a single political party's eternal rule and the state's love for a neighboring superpower.

But that is not all: if our observer had the opportunity to study the formal side of the policing and judicial procedures and practices, how they look "on paper," he would discover that for the most part the common rules of criminal procedure are observed: charges are laid within the prescribed period following arrest, and it is the same with detention orders. Indictments are properly delivered, the accused has a lawyer, and so on. In other words, everyone has an excuse: they have all observed the law. In reality, however, they have cruelly and pointlessly ruined a young person's life, perhaps for no other reason than because he made samizdat copies of a novel written by a banned writer, or because the police deliberately falsified their testimony (as everyone knows, from the judge on down to the defendant). Yet all of this somehow remains in the background. The falsified testimony is not necessarily obvious from the trial documents and the section of the Criminal Code dealing with incitement does not formally exclude the application of that charge to the copying of a banned novel. In other words, the legal code-at least in several areas-is no more than a facade, an aspect of the world of appearances. Then why is it there at all? For exactly the same reason as ideology is there: it provides a bridge of excuses between the system and individuals, making it easier for them to enter the power structure and serve the arbitrary demands of power. The excuse lets individuals fool themselves into thinking they are merely upholding the law and protecting society from criminals.

And the limits of law for creating a free and happy society:

The point is this: even in the most ideal of cases, the law is only one of several imperfect and more or less external ways of defending what is better in life against what is worse. By itself, the law can never create anything better. Its purpose is to render a service and its meaning does not lie in the law itself. Establishing respect for the law does not automatically ensure a better life for that, after all, is a job for people and not for laws and institutions. It is possible to imagine a society with good laws that are fully respected but in which it is impossible to live. Conversely, one can imagine life being quite bearable even where the laws are imperfect and imperfectly applied. The most important thing is always the quality of that life and whether or not the laws enhance life or repress it, not merely whether they are upheld or not. (Often strict observance of the law could have a disastrous impact on human dignity.) The key to a humane, dignified, rich, and happy life does not lie either in the constitution or in the Criminal Code. These merely establish what may or may not be done and, thus, they can make life easier or more difficult. They limit or permit, they punish, tolerate, or defend, but they can never give life substance or meaning. The struggle for what is called "legality" must constantly keep this legality in perspective against the background of life as it really is. Without keeping one's eyes open to the real dimensions of life's beauty and misery, and without a moral relationship to life, this struggle will sooner or later come to grief on the rocks of some self-justifying system of scholastics. Without really wanting to, one would thus become more and more like the observer who comes to conclusions about our system only on the basis of trial documents and is satisfied if all the appropriate regulations have been observed.

Don't forget that the Soviet Union had a beautiful constitution full of rights as well as a full legal and court system with all sorts of protections and limits written into it. And yet in practice the USSR was nightmare totalitarian state that brutalized and murdered people. And had all the proper legal paperwork filled out to do so.

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So, Marvel is going to kill one of its most money-making properties, Wolverine.

It's so terrible watching your heroes die: Jason Todd, aka the second Robin. Superman. Then the Flash died. Then Green Lantern died. Then Batman died. Then Captain America died.

Somewhat recently Peter Parker died. Doc Ock took over his body and began acting as "The Superior Spider-Man" for a year and a half.

They all died for about, oh, I don't know, about 12-18 months.* Then they all got better. It was like a miracle or something.

But I'm sure Wolverine's like Really Dead Now.

Who cares? Seriously. No one buys this anymore. I don't mind stunts, but do a different stunt.

Speaking of things which are Almost But Not Quite Dead: here's the cast of the new Star Wars movie.

I don't know why this is "news," except that it's now "confirmed," but we knew the oldsters would be back for this for like half a year.

I guess there's some new information, like that actors you never heard of will be playing characters you never heard of.

That's actually my favorite phase of any publicity campaign for a Star Wars movie: When the producers make Major Announcements, like, I don't know, "Steve Coogan will be playing galactic garbage inspector Flizz Flazzkran." Or, "Morgan Freeman will be playing Jedi Consular Uha Umuutua."

I always love that part, where the media is compelled to report these absurd names as if it means anything except to action-figure sculptors. Breaking news: Patton Oswald will be playing Gloopo Glornick.

From the What Could Have Been Great But Is Really Meh Department, a gymnast puts on a Spiderman costume and then films himself... mostly climbing fire escapes.

I'm not really that impressed by Spiderman climbing a fire escape. I can climb a fire escape. What else you got?

Oh, he does do a few impressive things, but if you're expecting some serious climbing or free running, well, here's some good news at least: Bruce Boxleitner will have a cameo role as Alderaan Alderman Ailek Attari.

Here's something mildly interesting -- mildly -- but geeks have known this for a year: The upcoming Avengers 2 will feature a super-speed mutant named Quicksilver, pictured here.

And the X-Men: Days of Future Past trailer also features a speedy mutant named Quicksilver.

Yeah, it's the same character. Apparently Quicksilver began as an evil mutant, but soon joined the Avengers as a hero. Later he got retconned as the son of Magneto.

So, as far as the IP, Marvel takes the position that while Fox may use the character as part of the rights it bought when it bought the X-Men rights, they also can use Quicksilver (and his mutant sister, the Scarlet Witch), owing to the fact that those two were long-time Avengers.

So, Quicksilver (a Flash ripoff no one cares about, really) is now in two movies.

I think Josh Wheedon is avoiding calling Quicksilver and Scarlet Witch "mutants," because that directly implicates the X-Men IP package, and won't say Magneto is their dad.

In the post-credit thing in the Captain America movie, they implied (without stating) that their powers arose from that glowing blue Tesseract McGuffin.

Yeah I don't really care either, honestly. Of all the characters to get the big-screen treatment in not one but two tentpole films... Quicksilver, The Man With No Name Recognition.

Fifteen years ago, if I told you that superhero movies would be so popular that there would be not one but two competing movie franchises featuring Quicksilver, you would have... well you probably would have ignored me and told me to lose weight.

Incidentally, Marvel's position that if a character has been in the comic-book Avengers, he can appear in an Avengers movie, is kind of legally menacing: Because almost all these characters have been Avengers, including Spiderman and Wolverine.

So they're just throwin' that out there, you know.

Why No, I'm Not Kidding: Archie is also slated to die in a couple of months.

Yup. They've got like five tricks.

This won't even been the stupidest stunt they've done with Archie.

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Per the new WaPo/ABCNews poll, there is only one important number where Democrats are in a better position today than they were four years ago:

Around this time in 2010, only 12 percent of Americans offered up positive opinions of the U.S. economy, compared to 29 percent today.

Granted, that's a very important number, and +17 is a big improvement. But still: a mere 29% of the public say anything positive about the economy.

On all other numbers, Democrats are in worse shape today than they were four years ago.

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Louis CK complained on Twitter.

I have to say I don't find the questions he posts particularly baffling, myself, and actually I would expect that kind of question to appear on pre-Common Core/non-Common Core tests as well.

Still, I imagine this is a cumulative thing, having so many unclear concepts thrown at his kid (and at him, as parents are expected to make sense of the textbook), and this is just the problem that compelled him to tweet.

Matthew Yglesias, a reliably thoughtless advocate for Bureaucratic Empowerment, immediately Voxplained it all to Louis CK by sending him a link to another writer on Vox who led her article with this rather self-defeating headline:

The Common Core makes simple math more complicated. Here's why.

She's actually trying to prove that Common Core is Awesome, but the headline sort of hints at the problem at the root of Common Core.

Common Core needlessly complicates the simple. They complicate the simple, supposedly, to impart "number sense" to kids, to get them to understand not just that 9 +3 = 12, but why 9 + 3 =12.

That's a very ambitious goal.

I suppose we should ask this question, however: Given that teachers are currently failing in the less-ambitious goal of simply teaching that 9+3= 12, why do we believe they'll be better at the more-ambitious goal of teaching why 9+3 =12.

You guys see Stand and Deliver, the story (IIRC) of Jamie Escalante, some kind of aerospace engineer (IIRC) who decided to try his hand at teaching math at a poor, underpeforming majority-Hispanic school?

Well, he has a class of higher-level students. He drills them to say "zero times six is zero, zero times seven is zero, zero times eight is zero," and so on, and then, in what the movie industry calls a "Button" (an exit-line designed to end a scene on a dangling, interesting question that either leads organically to the next scene or suggests unfilmed activity going on beyond the filmed scene), he says to the class:

"Good (that you understand that zero times any number is zero).

Now: Why?"

The "Why?" is an interesting question. But note the order in which he introduced it: First he drilled the basics. Then, with his higher-performing students only, he introduced the Why?, not as the foundation of mathematical exploration (the foundation being rote memorization and drilling), but as the apex of it.

The last step, not the first, and not even the fifth.

I have previously written of this, calling it Cargo Cult. Previously uncontacted aboriginal populations would see the great planes flying in the sky, and would see them land and discharge various cargoes, including, say, cans of Coca-Cola.

The aboriginals wanted their own Sky God Chariots, and wrongly believed that Coca-Cola had something to do with aerospace technology; they'd collect empty cans of Coca-Cola and arrange them in red-and-white shrines in the belief that mastery of the Coca-Cola would lead to mastery of the power of flight.

They confuse the end result of a highly technological civilization (standardized cans of mass-produced, globally-sold beverages) with the necessary prerequisites for that civilization.

Similarly, Common Core bureaucrats have noticed that kids who are high-performing in math tend to have a "number sense" that extends beyond rote memorization and the "standard algorithm" for solving problems (the "standard algorithm" is their term for the classic methods of two-digit multiplication and division, the carry-the-one algorithm which will always get the right answer if you're careful with basic arithmetic).

High-performing kids begin to understand that 17+6 can be thought of as 7+6, plus ten.

This is an important thing, as I've mentioned before.

But they're teaching this ass-backwards.

First comes the foundation, then comes the elaboration and sophistication.

Common Core takes the position that you teach all three simultaneously, in hopes that increasing the conceptual difficulty of a problem, and tripling the mental load a kid is required to get an answer for 17+6, will somehow make it "easier" for him.

Douglas Adams wrote:

The History of every major Galactic Civilization tends to pass through three distinct and recognizable phases, those of Survival, Inquiry and Sophistication, otherwise known as the How, Why, and Where phases. For instance, the first phase is characterized by the question "How can we eat?" the second by the question "Why do we eat?" and the third by the question "Where shall we have lunch?"

A kid who hasn't figured out "How can we eat?" is going to starve until he does, and he's not going to profit from the "Why do we eat?" phase until he's got something in his belly.

Anyway, I've written about this before, several times.

They did the same thing with reading, and a generation lost its ability to read:

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I'm not sure what this means, and I will find out in the next few minutes. (I thought it was more important to get breaking news up.)

My guess is that this is a ban on his day-to-day participation in the club. He won't be permitted to make decisions for his own business. He's being forced into a completely passive ownership role. He'll still own the team, technically, but someone else will run it, and he'll be banned fro interfering.

Who the heck gets to pick the new team caretaker is beyond me.

Hmm: Maybe the league's power is less well defined than I thought:

Q: What penalties can Silver issue?

A: Under the provisions of the bylaws, Silver has two sets of powers that he may use. Under either, he can issue a lifetime suspension and a substantial fine. Under Paragraph 24(l) of the constitution that was adopted by the NBA owners on Oct. 26, 2005, he can issue a fine of up to $2.5 million, can suspend an owner indefinitely and can order the forfeiture of draft picks. This provision applies to situations that are not covered by specific rules within the constitution.

In another provision, Paragraph 35(A)(c), Silver can issue an indefinite suspension and a fine of $1 million to any owner who "makes ... a statement having or designed to have an effect prejudicial or detrimental to the best interests of basketball."

If Silver wants to hammer Sterling, he can assert that Sterling's statements are so
egregious that they go beyond the misconduct contemplated in Paragraph 35 and allow Silver to assess the greater penalties found in Paragraph 24. Sterling can argue that he merely made a statement, but the statement at a minimum allows a lifetime suspension and a $1 million fine.

Q: Is it possible for Silver and the NBA to terminate Sterling's franchise ownership?

A: Yes. Under the terms of Paragraph 13 of the constitution, the owners can terminate another owner's franchise with a vote of three-fourths of the NBA Board of Governors, which is composed of all 30 owners. The power to terminate is limited to things like gambling and fraud in the application for ownership, but it also includes a provision for termination when an owner "fails to fulfill" a "contractual obligation" in "such a way as to affect the [NBA] or its members adversely." Silver and the owners could assert that Sterling's statements violated the constitution's requirements to conduct business on a "reasonable" and "ethical" level.

Thanks to Brian in New Orleans.

Corrected: I wrote, at first, that the commissioner only had the power to institute a 1-year suspension, because that's what I... well, heard from another commentator (Earl Ofari Hutchinson). But Brian's link seems to indicate the commissioner has more power than that.

I retract my claim. I don't know the actual powers of the commissioner either way-- but certainly it seems I cannot rely on my previous hearsay belief that only a 1-year suspension was permitted.

Posted by: Ace at 10:21 AM | Comments (624)
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41%. He's been down to 39 and 38 in other polls, but not this low in the Post/ABC poll.

ObamaÂ’s approval rating fell to 41 percent, down from 46 percent through the first three months of the year and the lowest of his presidency in Post-ABC News polls. Just 42 percent approve of his handling of the economy, 37 percent approve of how he is handling the implementation of the Affordable Care Act and 34 percent approve of his handling of the situation involving Ukraine and Russia.

...

The Post-ABC poll found that 44 percent say they support the law while 48 percent say they oppose it, which is about where it was at the end of last year and in January. Half of all Americans also say they think implementation is worse than expected.

Last month, a Post-ABC poll found 49 percent of Americans saying they supported the new law compared with 48 percent who opposed it. That finding was more positive for the administration than most other polls at the time. Democrats saw it as a possible leading indicator of a shift in public opinion, but that has not materialized.

Yes, it was an outlier and a bad poll. They seem incapable of admitting the obvious.

It was actually pretty obvious at the time, too.

Pessimism about the economy also persists, with more than seven in 10 describing the economy in negative terms. Public attitudes about the future of the economy are anything but rosy. Just 28 percent say they think the economy is getting better, while 36 percent say it is getting worse and 35 percent say itÂ’s staying the same.

...

Among registered voters, 45 percent intend to vote for the Democratic candidate in House elections this fall, and 44 percent for the Republican candidate. Based on past elections, that close margin is troubling news for Democrats. Shortly before they lost control of the House in 2010, Democrats held a five-point advantage on this question.

Another measure of voting intentions came when people were asked whether they thought it was more important to have Democrats in charge in Congress to help support ObamaÂ’s policies or Republicans in charge to act as a check on the presidentÂ’s policies. On this, 53 percent of voters say Republicans and 39 percent say Democrats. That is almost identical to the results of the same question when it was asked in September 2010, two months before the GOP landslide.

Democrats still have an edge on their handling of many issues, surprisingly (and regrettably) enough.

Where they kill us, though, is on the Shares My Values type questions:

Where Democrats have the biggest advantages are on the same contrasts that helped Obama win reelection in 2012 — indicators of which party voters believe is on their side. By 52 to 32 percent, those surveyed say they trust Democrats to do a better job helping the middle class, and by 55 to 25 percent, they trust Democrats on issues that are especially important to women.

I'm starting to fear that the public likes the Democrat plan, just not the execution.

There's some long-range upside there, as the Democrats' failure to execute their plan is not just one of managerial incompetence; you just can't tax and spend your way to prosperity.

But that could take a decade for the dumb, shallow-thinking American public to grasp.

The public has good reason to disapprove of Obama's alleged "recovery." It's awful.

he current job market recovery has been an historically slow one. It was only in March that private-sector employment surpassed its former peak reached in January 2008, or 51 months from its February 2010 nadir. During the 1981-82 recession by contrast, it took private-sector employment just 10 month to surpass its old high. If the current jobs recovery had been as robust as the ones during the Reagan and Clinton years, we would have around 6 million more private-sector jobs right now.

But the problem isnÂ’t just the quantity of jobs created, but the quality, too. From an updated study by the National Employment Law Project (and see [below] chart):

We find that during the labor market downturn (measured from January 2008 to February 2010), employment losses occurred throughout the economy, but were concentrated in mid-wage and higher-wage industries. By contrast, during the recovery (measured from February 2010 to February 2014), employment gains have been concentrated in lower-wage industries. Specifically:

– Lower-wage industries constituted 22 percent of recession losses, but 44 percent of recovery growth.

– Mid-wage industries constituted 37 percent of recession losses, but only 26 percent of recovery growth.

– Higher-wage industries constituted 41 percent of recession losses, and 30 percent of recovery growth.

Today, there are nearly two million fewer jobs in mid-and higher-wage industries than there were before the recession took hold, while there are 1.85 million more jobs in lower-wage industries. Service-providing industries such as food services and drinking places, administrative and support services, and retail trade have led private sector job growth during the recovery. These industries, which pay relatively low wages, accounted for 39 percent of the private sector employment increase over the past four years.

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In case you haven't read, Sterling has had a bad reputation on matters of race for a long time -- some of it court-documented, actually.

Kareem Abdul-Jabbar's interesting piece notes some of this, but there's been a welter of reporting on it in the past week.

2006: U.S. Dept. of Justice sued Sterling for housing discrimination. Allegedly, he said, “Black tenants smell and attract vermin.”

2009: He reportedly paid $2.73 million in a Justice Dept. suit alleging he discriminated against blacks, Hispanics, and families with children in his rentals. (He also had to pay an additional nearly $5 million in attorneys fees and costs due to his counsel’s “sometimes outrageous conduct.”)

2009: Clippers executive (and one of the greatest NBA players in history) sued for employment discrimination based on age and race.

By the way, Abdul-Jabbar starts his piece with this:

Moral outrage is exhausting. And dangerous. The whole country has gotten a severe case of carpal tunnel syndrome from the newest popular sport of Extreme Finger Wagging. Not to mention the neck strain from Olympic tryouts for Morally Superior Head Shaking.

But the point is, Sterling has long been the kind of guy the NAACP should be protesting, not giving two lifetime achievement awards to, for God's sake.

So what the hell gives?

I wonder if this had anything to do with anything.

The National Association for the Advancement of Colored People (NAACP) accepted multiple grants over a period of several years from Los Angeles Clippers owner Donald Sterling, and publicly defended Sterling even after some in the African-American community complained about his alleged racism.

...

NAACPÂ’s LA chapter was financially supported by SterlingÂ’s foundation, records reveal. Jenkins, representing the NAACP, received a grant from SterlingÂ’s foundation at the 2013 Donald T. Sterling Charitable Foundation Gala just four months ago..

Jenkins also accepted a grant from SterlingÂ’s foundation in 2010 at SterlingÂ’s foundationÂ’s charity summit at the Sterling World Plaza. The Los Angeles NAACP was listed as one of the 25 charities supported by Sterling in promotional material for the event.

...

The LA NAACP went ahead with giving him awards despite the nasty racial stuff alleged against Sterling. At the time, Jenkins explained:

“We can’t speak to the allegations, but what we do know is that for the most part [Sterling] has been very, very kind to the minority youth community,” Jenkins said in May 2009. “Over the last ten years or so, 1000 to 2000 at risk youth have been able to come to live Clippers games, those who have never seen a pro basketball game before,” Jenkins said.

It is incredible to me that the guy gives out 100-200 free tickets over the course of a season (and of course there are that many unsold tickets) for ten years and Jenkins cites this as a compelling reason to honor the guy, despite reports of racism.

The exact thing the organization supposedly stands against.

I get it, I get why: Because, of course, Sterling had compromised himself on numerous occasions, which of course then gives the NAACP a way to wheedle money out of him for itself and for causes it approves of, and Sterling is himself interested in buying some latitude from the NAACP.

So both parties enter a mutually beneficial transaction: The NAACP gets money, which it needs, and Sterling gets a pass, and maybe even two Lifetime Achievement awards, which he needs.

But while I understand it, I also understand it's a very shady transaction, and it sure the hell makes the NAACP seem less than principled.

Posted by: Ace at 02:11 PM | Comments (239)
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Here's that FOIA'd email. Judicial Watch published a press release noting this and other emails.

Ben Rhodes is currently "Assistant to the President and Deputy National Security Advisor for Strategic Communications and Speechwriting."

As the second "Goal" of Rice's appearances -- second only to a reassurance that Obama was working hard to protect the American people -- is this:

* To underscore that these protests are rooted in an Internet video, and not a broader failure of policy.

In a series of model answers to potential questions, the memo states:

Q: What's your response to the Independent story [they mean the UK newspaper the Independent -- ace] that says we have intelligence 48 hours in advance of the Benghazi attack that was ignored? Was this an intelligence failure?

We are not aware of any actionable intelligence indicating that an attack on the U.S. Mission in Benghazi was planned or imminent. The currently available information suggests that the demonstrations in Benghazi were spontaneously inspired by the protests at the US Embassy in Cairo and evolved into a direct assault against the US consulate and subsequently its annex.

Background: Ben Rhodes, Obama's "fixer," is known to have been at the center of the editing/scrubbing operation since the start, working closely with Hillary's own Palace Guard Victoria Nuland.

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