I'm going to need these, I reckon

Tired of Matheson, health care, Sotomayor, the economy, and all the rest? Me, too.

Instead, watch some Three Little Pigs 2.0:

Oh man, redux

Having read through Hatch's entire statement again, I feel like I owe the public an apology. Shatner isn't going to be enough to compensate. So here, watch the hell out of the ukulele orchestra:

Oh man

I'm really sorry about that last post. With the long-ness. The drawnout-ness. The scratching the eyes-ness. So I give you the only thing I know that can bring you back from the brink. I give you Shatner:

Cheeky, redux

Sen. Hatch put out a release (or you can see the Trib's story here) further explaining his non-support of judge Sotomayor. I don't normally do this, but I'm going to dump the whole release into the blog. It's long and here are a few points before you get reading:

• Her statements and speeches are at least as important as her record. What she said is bad.

• Her decisions in the firefighters case, the gun case and the personal property case are bad.

And here, in all its glory, is his statement.

Thank you, Mr. Chairman. I want to commend you and the distinguished ranking member, Senator Sessions, for conducting a fair and thorough confirmation hearing on the nomination of Judge Sonia Sotomayor to replace Justice David Souter. I was especially pleased when Judge Sotomayor said the hearing was as gracious and fair as she could have asked for.

I come to the confirmation process wanting to vote for a President’s nominees and the prospect of a woman of Puerto Rican heritage serving on the Supreme Court says a lot about America. President Obama could have chosen a Hispanic nominee that all Senators could support. He chose not to do so and I regret that I cannot support this nominee.

Qualifications for judicial service include legal experience and Judge Sotomayor has an impressive record of academic and professional achievement. She has a compelling life story and an obvious commitment to public service. But qualifications also include the more important element of judicial philosophy, or a nominee’s understanding of the power and proper role of judges in our system of government. Judge Sotomayor’s approach to judging is more important to me than her resume.

In her opening statement at the hearing, Judge Sotomayor said that her judicial philosophy is simply fidelity to the law. Unfortunately, that phrase begs rather than answers the important questions. Her hearing testimony and answers to post-hearing written questions must be viewed against the rest of her record including her speeches, articles, and cases.

Some have encouraged us to selectively consider Judge Sotomayor’s record, looking only at her cases and ignoring her speeches and articles. Judge Sotomayor, however, certainly took great care and gave great thought to her speeches and articles, and I believe that the respect she deserves requires taking her entire record seriously. We must, of course, look at each part of her record in its proper context for what it properly can provide. But it is particularly appropriate to consider Judge Sotomayor’s entire record because, on the Supreme Court, she will help determine the very precedents that today bind her as an appeals court judge. Because she will not in the future have the same judicial constraints she has had in the past, her views about judicial power and process, expressed in other settings such as articles and speeches, become more rather than less relevant.

Judge Sotomayor has given speeches directly addressing how judges should approach deciding cases. She gave one particular speech more than half a dozen times over nearly a decade while she was a sitting judge. It is, therefore, a particularly useful source of her views on this important subject. In that speech, Judge Sotomayor acknowledged that race and gender affect how judges decide cases generally, and “the facts I choose to see” specifically. She embraced the notion that there is no objectivity or neutrality in judging and that impartiality is merely an aspiration which judges probably cannot achieve, and perhaps should not attempt.

These are troubling statements that appear to conflict with the impartiality that I believe is essential, that most Americans expect, and that the oath of judicial office requires. As a result, Judge Sotomayor and her advocates have tried to blunt this speech’s more controversial edges. They have, for example, emphasized its audience or its purpose rather than its content. The claim that she used the speech solely to inspire law students, however, is both false and irrelevant. It is false because she also gave the speech to other audiences, such as the Princeton Women’s Network, and published it in a law journal certain to be read by a broader audience. More importantly, the claim is irrelevant because the controversy comes from its content, not from its audience.

In another speech that she gave just a few months ago, Judge Sotomayor discussed the relevance of foreign law to the interpretation and application of American law. The Supreme Court has begun using foreign law to shape its interpretation of constitutional provisions related to the death penalty, privacy, and other issues. In my view, this is simply another means judges use to change the meaning of the Constitution from what the people intended. Changing the Constitution’s meaning is changing the Constitution itself, something judges have no authority to do. Judge Sotomayor was quite candid in this speech, saying that foreign law will be “very important” in thinking about legal issues and that judges may look to what “anyone has said to see if it has persuasive value” in deciding cases.

Once again, Judge Sotomayor’s advocates have attempted to minimize the significance of such controversial views. At the hearing and in answers to post-hearing questions, for example, she appeared to take a narrower position than in her speech, stating that judges may not use foreign law as “binding or controlling precedent” in deciding cases. No one, however, argues otherwise. The issue is not whether a foreign court’s decision can literally or formally bind an American court. It cannot. The issue has always been whether decisions by foreign courts may influence the interpretation, or may be used to shape the meaning, of American statutes or the Constitution. On that question, Judge Sotomayor said in answers to post-hearing questions that decisions of foreign courts can indeed be “a source of ideas informing our understanding of our own constitutional rights.”

Analysts such as Byron York and Tony Mauro have observed what I found frustrating, that the position Judge Sotomayor took at the hearing appeared to conflict with the positions she had taken on such issues in her speeches and articles. Even while supporting her confirmation, the Washington Post editorialized that Judge Sotomayor’s attempts to explain away or distance herself from past statements “were unconvincing and at times uncomfortably close to disingenuous, especially when she argued that her reason for raising questions about gender or race was to warn against injecting personal biases into the judicial process. Her repeated and lengthy speeches on the matter do not support that interpretation.” This left me with the speeches and articles themselves and the troubling picture they paint of an activist approach to judging.

Turning to her cases, I would note first that the Supreme Court has disagreed with Judge Sotomayor in nine out of ten cases it has reviewed, and affirmed her in the remaining case by the slimmest 5-4 margin. Those reversals include significant criticism of her decisions. In one case, for example, the Court said that Judge Sotomayor had failed to follow its caution “consistently and repeatedly recognized for three decades” in creating a right to sue private corporations for violating the Constitution. Even the dissenters, who voted to affirm Judge Sotomayor’s result, rejected her expansive reasoning.

President Obama has said that only a small portion of a judge’s decisions – he claims it is just five percent – are truly hard cases. If he is correct, these best reflect a judge’s own views about how to approach and decide cases, that is, how to exercise judicial power. And the Supreme Court decides only the hardest cases, accepting barely one percent of the cases appealed to it for review and deciding two-thirds of those by split decisions.

The Ricci v. DeStefano case has received significant attention, not simply because it is one of those decisions in which the Supreme Court reversed Judge Sotomayor. In this case, she approved a city’s decision to throw out the results of a fairly designed and administered promotion exam because too few minorities passed it. This case presents troubling questions of both process and substance. Judge Sotomayor initially used a summary order that did not have to be circulated to the full Second Circuit, and then a per curiam opinion that is permissible only when the law is entirely settled and its application is clear. Each was but one paragraph long and neither appears to have been an appropriate vehicle for handling this case.

It is important to point out that this case involved both kinds of racial discrimination covered by Title VII of the 1964 Civil Rights Act, disparate treatment which focuses on motivation and disparate impact which focuses on consequences. The city claimed that its disparate treatment of those who passed the promotion exam was justified by the fear of a disparate impact lawsuit brought by those failed it.

Judge Sotomayor and her advocates assert that this decision was based squarely on settled and longstanding Second Circuit and Supreme Court precedent. Contrary to her statement to me at the hearing, however, the one-paragraph Second Circuit opinion cited no such precedent at all, but only district court opinion in that case. But the district court actually acknowledged that this was a very unusual case in which those who passed a promotion exam challenged the refusal to use the results rather than those who failed challenging the decision to use them. None of the precedents cited by the district court involved this kind of case.

For this obvious reason, six of Judge Sotomayor’s Second Circuit colleagues believed that the full circuit should have reviewed her decision, arguing that the case raised “important questions of first impression in our Circuit--and indeed, in the nation.” When it reversed Judge Sotomayor, the Supreme Court similarly observed that there were “few, if any, precedents in the courts of appeals discussing the issue.”

On its face, Justice Kennedy’s opinion belies Judge Sotomayor’s claim at the hearing that the lack of precedent was limited to the new legal standard she said the Court was creating. Not only did the opinion plainly state that there are “few, if any, precedents…discussing the issue,” but these words followed the Court’s description of the facts, before it had even begun addressing the appropriate legal standard.

Judge Sotomayor’s decisions in cases involving the Second Amendment right to keep and bear arms are also troubling. Last year, in District of Columbia v. Heller, the Supreme Court clearly identified the proper analysis for deciding whether the Second Amendment binds states as well as the federal government. Several months later, in Maloney v. Cuomo, Judge Sotomayor ignored that directive and clung to her previous insistence, following a different analysis the Supreme Court had long ago discarded, that the right to bear arms does is protected only against the federal government. In the process, she also stuck with the notion that the right to bear arms is so insignificant that virtually any conceivable reason for restricting it is permissible.

I asked her about these decisions at the hearing and found that she either could not remember or simply would not acknowledge even the most obvious answers to basic questions. She would not, for example, acknowledge that the Supreme Court’s so-called rational basis standard, which she used post-Heller to uphold a weapons restriction, is the most permissive standard under which courts uphold virtually any statute. Her own opinion in Maloney said that under this standard, legislation “merely must find some footing in the realities addressed by the law” to be upheld by the courts. But while Maloney was issued only a few months ago, Judge Sotomayor seemed unable or unwilling to acknowledge in the hearing what she had put in writing.

She likewise gave short shrift to the fundamental right to private property. In Didden v. Village of Port Chester, Judge Sotomayor affirmed dismissal of a property owner’s lawsuit after the village condemned his property and gave it to a developer. The Supreme Court, incorrectly in my view, had previously held that economic development can constitute the “public use” for which the Fifth Amendment allows the taking of private property with just compensation. In Didden, however, the village had only announced a general plan for economic development. This may have made takings of specific property within the development area possible, but no taking had in fact occurred. Mr. Didden sued after the village later condemned his property.

In yet another cursory opinion, Judge Sotomayor denied Mr. Didden even a chance to argue his case. She said that the three-year period for filing suit began not when the village actually took his property, but when the village earlier merely announced its general development plan. In other words, Mr. Didden should have sued over the taking of his property before his property had been taken. But had he done so then, he would certainly have been denied his day in court because his legal rights had not yet been violated. This catch-22 amounts to a case of dismissed if he did, and dismissed if he did not. Along the way, Judge Sotomayor gave inadequate protection to yet another fundamental constitutional right.

Let me emphasize that I like Judge Sotomayor and believe she is a good person. I would like to be able to support her nomination. I believe, however, that a nominee’s approach to judging is more important than her resume, especially on the Supreme Court where Justices operate with the fewest constraints. Each nominee comes to the Senate with her own record, and it is that record that we must examine for clues about her judicial philosophy. Judge Sotomayor’s speeches and articles outline a troubling judicial philosophy which her appeals court cases, hearing testimony, and answers to post-hearing written questions do not neutralize.

My colleagues know that I take quite a generous approach to the confirmation process, believing that the Senate owes some deference to the President’s qualified nominees. I have rarely voted against a judicial nominee and took very seriously whether to do so now. I read and studied Judge Sotomayor’s speeches, articles, and cases. I met with and considered the opinion of legal experts and advocates of various perspectives. I participated in all three question rounds during the confirmation hearing. In the end, however, neither general deference to the President nor a specific desire to support a Hispanic nominee overcame my concerns. There remained too many conflicts between Judge Sotomayor’s record and principles about the judiciary in which I deeply believe. I wish President Obama had taken a different course. But that is the decision I have to make in this case.

Sunday thinking

Just mulling over Sen. Hatch's statement about not supporting judge Sotomayor's SCOTUS nomination.

Hatch's GOP made much of this being a choice based on race. Bemoaned it over and over.

After the hearings Hatch and others complained loudly that Sotomayor wouldn't answer specific questions.

So what did Sen. Hatch say in his release? It's high time to diversify the racial makeup of the court but he just can't support this nominee.

Why?

We don't know because he's refusing to answer specific questions on the matter.

Cheeky.

Information wants to be free ...

... which is why newspapers are — to put it in eloquent 1990s language — royally screwed. But that's not the topic of this particular post. This particular post is about my current obsession with semi-punk band Rise Against.

No, wait. That's not it either.

Ah, here we go. Mr. Pratt's police report, please come forward! Actually, it won't be, at least for a while. The Herald's Janice Peterson has request the document about the LDS Church seminary principal-turned sex-assault suspect, but county attorney Jeff Buhman doesn't want it released into the public.

I chatted with Buhman this morning, and he says his fear is that Pratt won't get a fair trial if the public is flooded with information about the case. Sex charges are going to haunt this guy for the rest of his life whether he's guilty or not and Buhman says he tries to operate on the "presumption of innocence." There's something a little noble about that, I suppose though given the current state of media coverage, the public information genie is out of the bottle.

Also, word on the street from other sources is that there aren't any other cases coming forward involving Pratt, but the long list of locations he allegedly took the teen is likely to get longer.

What do you think, police report should be public? Kept concealed until the trial is over?

Not running, no hitters and sweet, sweet sugar

Just cleaning out some stuff that didn't really warrant stories but might be interesting:

• Utah County Commissioners went to San Francisco recently to get bonding approval for their portion of I-15 reconstruction. First of all, Larry Ellertson and Gary Anderson should know better than to fly directly into SF. You fly into Oakland, save $150 in taxpayer dollars, and take transit or your rental across the bay. Second of all, the three commissioners decided to take in a Giants game while they were there. It was, of course, Jonathan Sanchez's no-no. Lucky.

• Jason Chaffetz and the rest of the congressional delegation released fundraising dollars for

the quarter. The 3rd District rep still has a little of that Utah sugar beet in him, or at least the industry's money. He picked up $500 from the Snake River Sugar PAC, $1,000 from the

Southern Minnesota Beet Sugar Co-op PAC and $5,000 from the

American Crystal Sugar PAC. (It was part of a freshman event organized by Texas Rep. Mike Conaway. But I argue Chaffetz has a deeper understanding. See, in America, first you get the sugar, then you get the power, then you get the something something.)

• UVU police still aren't releasing what the white powder was that caused a massive shut down. We know it was a powdered food product and that police are still examining video in the case.

• Steve Turley isn't running for Provo mayor. There were a lot of rumors floating around about the councilman's ambitions and at least one animated discussion with one of the candidates outside a local restaurant.

Night Shift Thursday!

These are PSAs. From ourselves. From the future.

Clever

1. Ask public for questions to use at Sotomayor hearings.
2. Send them to your campaign site instead of your Senate site to do it.
3. Collect donations for being the tough conservative.
4. Profit!

Sen. Hatch, you sly devil.

(I was one-thumb posting this with a baby in the other arm. Hat Tip: DailyKos.)

Left hand, meet right

E-mail today from the Utah Transit Authority:

In celebration of the 19th anniversary of the passage of the Americans with Disabilities Act (ADA), Utah Transit Authority will host its annual “I choose to use UTA” awards ceremony. Three UTA riders with disabilities and three staff will be honored. UTA staff will also report on key accomplishments of the past year in developing a diverse public transit system that is accessible and inclusive for all riders. (Emphasis mine)

I wonder if those accomplishments include the near miss to increase fares for paratransit riders despite continued bonuses, Segways and trips to Europe.

Monday Cup o' Joe

It's Monday, and what better way to celebrate the first day of the rest of your life than to read up on someone who is actually doing something with hers?

"This isn't politics -- this is your country and the quality of your life," she said. "If we don't participate, we've lost." -- Claire Geddes

• The culture wars are in full swing, and the weapons of choice are lips.

• In Pignanelli and Webb, we get a fresh bit of information: Sen. Liljenquist as Lt. Gov.?

• The Trib got it a day ahead of everyone else, but I explore whether Chris Cannon the person

can be sued because his campaign owes someone money. It doesn't look good for creditors.

• Looking to wind as coal plant plans are dropped. Cap and trade makes coal less palatable (though it's not mentioned in the story.) I wonder if nuclear gets a boost, i.e. Aaron Tilton and Co.

And if none of that interests you: Unscientific America, read it and

weep.

Just an "Lt." away

Let's just go straight to the e-mail from, well, someone's office:

The content held within the body of this email is the same as the attached document.

Lt. Governor Gary Herbert

Schedule

July 8 – July 17, 2009

*The Governor’s schedule is subject to frequent change. (My bold.)

Did someone get confirmed ambassador when no one was looking? Yeah, it's small and dumb, but I'm working the night shift tonight and I've already written the story about the Stadium of Fire not really burning that flag.

And if that doesn't interest you, maybe printing your own plastic goods will.

Two things

Thing 1:

Reposted from Taylor.A.Smith in the comments of SB81 post:

I find it interesting that we will be celebrating the greatest act of illegal immigration in a couple of weeks- after all, on July 24, 1847 Utah was still part of Mexico, and Brigham and the Saints didn’t have permission to be here…

Thing 2:

Free Jeep with wench winch!

Terms and Conditions:

1. Marriage must last a minimum of 5 years.

Big props for creativity. (Jeep pictured, click link for the rest.)

Mom! Gehrke's copying me!

With no prior coordination, the Trib's Robert Gehrke and I came up with the same piece on the public employees' retirement system looking to stanch the bleeding. (You may have wanted to use "staunch" there. Don't do it.)

Anyway, his and mine. (To be fair, apparently his got held a day though he always says that.)

URS director Robert Newman used a phrase that should always make it into a story though I failed this time, thus failing you, gentle reader. Referring to the stock market, he said the upswing we're seeing right now could simply be a "dead cat bounce."

Wikipedia gives us: It is derived from the notion that "even a dead cat will bounce if it falls from a great height."

If it's still not clear, see graphic representation below.

[UPDATE] Heads I win, tails you lose

Story today about "Selling Chaffetz" in which I explore a former marketing exec turned congressman and the love affair he and the press are having. (No, it's not lost on me that I'm the press.)

From the Dnews comes a piece about Chaffetz "considering" a run against Sen. Bob Bennett.

"I don't have any intention of doing that (running against Bennett)" now, he told the Deseret News. "But I guess I like to keep my options open. Never say never."

So which is it? He's currently on a plane back to D.C., but we sent a few texts back and forth last night and he had this to say:

My quotes are accurate, but the headline suggests more than reality.

I would like to know how much more than reality. If I get through, I'll update. It should be noted that he posted both stories on his Facebook page with this comment:

I mean it when I say, "I have no intention of running for the U.S. Senate." I am 100% focused on being the best Representative possible. I enjoy it in the House and I think I am making a difference.

Of course, "no intention" is to political answers as "a fork and warm Jell-O" is to putting food in your mouth. I'll update when I get a chance to speak with him.

(Photo boosted from Jadydangel at Flickr.)

UPDATE

I think Tommy Burr (Facebook friends!) over at the Trib did it best:

For the record, Chaffetz says he is also not closing the door on running for president, governor, chairman of the Republican National Committee or for a pundit spot on Fox News.

iPhone impressions

It's been a couple of weeks since I purchased the new 3G S and I have to say I'm pretty happy.

A few things still nag:

• No Pandora while using the phone for other things. Apple has resisted calls for true multitasking, and for the most part I haven't had a problem with it. But the music streaming service is the cat's meow and cutting out whenever I leave the app just plain sucks.

• Speaking of sucks... The still photo quality is really bad unless the light is really good. No flash has me looking at options like BetterPix to see if it can help.

• Speaking of Flash... I know that popular browser plug-in is a horribly bloated, memory leaking, resource hog. But it's everywhere and that makes it frustrating when I can't access something that billions of other can.

Things I love:

• The video quality is pretty remarkable for a phone.

• The virtual keyboard has been much easier to get used to than I feared it would be. The corrective typing quality is just shy of brilliant.

• Games. I didn't think I'd be playing them much, but I enjoy a few Time Wasters like FlightControl, Galcon (pictured), Glyder, and Hero of Sparta.

Installed (non-game) apps:

• TweetDeck

• BlogPress

• The Weather Channel

• Google

• NYTimes

• Pixelpipe

• Stanza

• Pandora

• Google Earth

• Dictionary

• Remote

• Shazam

• Mocha VNC

Monday Cup o' Joe

• Rebecca Walsh (x2):

Gov. Huntsman's legacy.

"Governor Huntsman did less with more than any other Utah governor," says Bob Springmeyer, Huntsman's 2008 Democratic challenger. "I would have liked to see him use his extraordinarily high approval rating and stand up to the Republican Legislature on issues like vouchers, education funding and ethics reform.

Huntsman did manage to polish Utah's image while (mostly) maintaining the quirkiness that residents seem to crave. Got alcohol reform passed, huge raises for teachers and more. He probably could have pushed ethics harder, but I think people seriously overestimate how much wiggle room there is when working with Utah's Legislature.

Utah Transit Authority taken behind the shed:

Life is good at UTA:

Trip to Europe to ride the trains, good.

Generous bonus plus $267,000 salary, good.

Six snazzy new Segways, good. ...

... But this is life at UTA. Each outrageous shopping spree/continental tour/salary spike for transit bosses is more incredible than the last.

It's a few days old, but it's worth the read if you missed it.

• From the Herald:

What does freedom mean?

The ice cream man!

Begun, the SB 81 Wars have

July 1 was Immigration Overhaul Day in Utah as SB 81 went into effect. Among other things, the bill requires state contractors to ensure their employees are legal and allows local law enforcement to act as federal agents when it comes to immigration violations.

It was only a matter of time before proponents or opponents of the bill started pointing at the actual effects. That time was Thursday. The Herald got a tip, as did at least one other media outlet, that the Utah County Sheriff's Department had pulled a woman over, asked her for her immigrant status and arrested her based on the fact that she is her illegally.

As per usual, there was a little truth in there, but not enough. A woman was indeed pulled over for a traffic violation and was indeed hauled into the jail because of her immigrant status. But the real reason was that when the deputies ran her information after pulling her over (standard procedure) a warrant popped up on an immigration hold.

Sheriff Jim Tracy said his deputies have been briefed on the new law, but that he doesn't have the manpower to have them go around all day making immigration busts. If something like Thursday's issue comes up, then they'll be happy to oblige.

BONUS: It turns out that there was an immigration agent at the jail when the woman was brought in. The agent recognized her and waited around for her family to show up to bail her out. See, her son also had a warrant out and when they showed up, he was arrested too.