Decisions, decisions

[Political Waves]

California's Prop 8 will stand -- but so will the 18,000 gay and lesbian marriages in California; how schizophrenic is that! The decision on this appeal was expected, given the oral arguments of a few months back; this particular battle was one of legalize. But ... no worries, dearhearts ... the basic issue will be revisited at every opportunity. This culture wall is crumbling -- and the initiative that established marriage as between a man and a woman passed narrowly to start with [48 - 52%]

As well, we've got us a Left-Wing Activist SCOTUS nominee -- NOT! This is not a hard-Left pick by any means. But we do have a Hispanic woman with an impressive liberal record, previously vetted by the Congress TWICE.

That 'Left-wing' stuff, that's what we're going to hear for the next weeks and months ... until we puke, likely. If they think Obama's a fascist -- what do we think we'll hear about Sonia Sotomayor? We'll also hear all about her Type 1 diabetes ... which may shake out as a public service alert to the millions undiagnosed.

Romney says she's "troublesome" -- other Righty talking heads are calling her the "most radical' of those on the short list; add that they're calling her a 'bully' and Obama's 'Harriet Miers.' FOX has its agenda for the next few months, and won't have to waft in the ethers as they have in the last weeks, making crap up to talk about.

Look -- the Republican base, as it is presently configured, is a Southern regional movement, with longstanding, tangled ties in the corporate community and is represented by old ... literally and figuratively ... deeply racist, unerringly self-protective white power-players -- the last thing they want is to yield judicial power to a Hispanic woman with enough fire in her belly to shake the status quo.

Thing is ... it's already shaken; and they're too self-deluded to understand that they've not only brought all this on themselves, they continue to contribute to their demise. Their problem? No matter what muck they throw to stop Sonia -- she's pretty much a done deal. After over 7 hours of personal conversation with the Prez ... certainly a longer vetting process than McCain gave Palin .... Obama picked someone who shares his bootstrap background; raised by a single Puerto Rican mother in the Bronx ...but also with very few cracks in her armor.

The faces of Obama and Sotomayor, standing in leadership before a diverse nation, represents it squarely; the Old White Dudes can kick and scream all they want, we're moving forward. Gay marriage is destined for approval in this nation; that will continue, state to state ... aided by an Obama White House that is leaning toward reversing Don't Ask, and has no personal issues with gay rights -- check out the change to equal benefits in the State Department. It will happen. And the faces of those that represent us will continue to take on color from the unyieldingly pale prototypes of yesterday.

A few brief reads on the breaking news of the day. Oh yeah -- and L'il Kim escalates himself from a nuisance to a danger ... reckless. Neither China nor Japan are amused, nor is South Korea; and China is the gobstopper here, finding itself in the unhappy position of urging calm in response.

Jude


California Supreme Court Upholds Ban on Same-Sex Marriage
JOHN SCHWARTZ, NYT
May 26, 2009
http://www.nytimes.com/2009/05/27/us/27marriage.html?ref=us

The California Supreme Court upheld a ban on same-sex marriage today, ratifying a decision made by voters last year that runs counter to a growing trend of states allowing the practice.

The decision, however, preserves the 18,000 marriages performed between the court’s decision last May that same-sex marriage was lawful and the passage by voters in November of Proposition 8, which banned it. Supporters of the proposition argued that the marriages should no longer be recognized.

Today’s decision, written by Chief Justice Ronald M. George for a 6-to-1 majority, said that same-sex couples still have the right to civil unions, which gives them the ability to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” But the justices said that the voters had clearly expressed their will to limit the formality of marriage to heterosexual couples.

Heated reaction to the decision began immediately, with protestors blocking traffic in front of San Francisco City Hall, their hands locked.

The same court had ruled in May that same-sex couples enjoyed the same fundamental “right to marry” as heterosexual couples. That sweeping 4-3 decision provoked a backlash from opponents that led to Proposition 8, which garnered 52 percent of the vote last November after a bitter electoral fight.

The opinion marks a new round in the long-running battle in California over the issue, and will almost certainly lead to a counter-initiative intended to overturn Proposition 8, which changed the state constitution, as early as next year.

The opinion focused on whether the use of a voter initiative to narrow constitutional rights under Proposition 8 went too far.

Supporters of same-sex marriage, who filed several suits challenging the proposition, argued that the change to the state’s constitution was so fundamental that the initiative was not an amendment to the constitution but a “revision,” a term for measures that rework core constitutional principles.

Revisions, under California law, cannot be decided through a simple signature drive and majority vote, which is what led to Proposition 8; they can only be placed on the ballot with a two-thirds vote by the legislature.

It has historically been rare, however, for the state’s courts to overturn initiatives on the ground that they are actually revisions, and many legal scholars deemed the challenge against Proposition 8 a long shot.

The question of whether Proposition 8 was an amendment or revision was the centerpiece of the oral arguments before the State Supreme Court during its hearing on March 5.

The justices who had issued the ringing support of same-sex marriage in 2008 presented a far less supportive front during the three-hour hearing. A number of justices who had voted in the majority in the 2008 case, particularly Joyce L. Kennard, strongly suggested in their questions from the bench that they were reluctant to overturn the will of the voters or to undercut the initiative process.

The justices had seemed to be seeking a middle ground that would allow the rights they had affirmed the year before to be preserved in the form of civil unions, which would be different from marriage in name only. Justice Kennard suggested that the substantive rights of gays were the same after the proposition, and all that had changed was “the label of marriage.”

That distinction was deeply dissatisfying to an attorney for plaintiffs, Shannon Minter, who argued that without the right to the word “marriage,” same-sex couples would find “our outsider status enshrined in our Constitution.”

In the months since the case was argued, three other states have legalized same-sex marriage. On April 3, Iowa’s supreme court struck down a state statute that limited civil marriage to a union between a man and a woman — and cited California’s 2008 decision repeatedly in support of its ruling. Less than a week later, the Vermont Legislature narrowly overrode a veto by Gov. Jim Douglas of a bill that allowed same-sex couples to marry. Then on May 6, Maine’s legislature, too, passed a bill allowing same-sex marriage, and Gov. John Baldaci signed it.

Initiatives are also moving forward in New York and New Jersey; a similar measure has stalled in the New Hampshire legislature by a slim margin this month, but could come up for a new vote next month.

At the same time, attitudes of Americans toward same-sex marriage favor liberalization of the practice. In an April CBS/New York Times poll, 42 percent of those surveyed favored same-sex marriage, up from 21 percent at election time in 2004, when it was a wedge issue during the presidential campaign. That poll suggests the trend will continue into the future: 57 percent of the respondents favored legal recognition for same-sex marriage, compared with 31 percent of respondents over the age of 40.

The language of Chief Justice George’s decision seemed almost regretful, as he wrote that “our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution.” Instead, he wrote, “our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.” ++

 
How The Media Will Smear Sotomayor
Jason Linkins, HuffPo
05-26-09
http://www.huffingtonpost.com/2009/05/26/how-the-media-will-smear_n_207560.html 

 
So, over Memorial Day, the betting line seemed to settle on Judge Diane Wood being something of a sure thing. But guess what? EVERYTHING YOU THOUGHT YOU KNEW ABOUT OBAMA'S SUPREME COURT PICK IS ABOUT TO CHANGE. Very slightly! Instead of Wood, it appears that Sonia Sotomayor shall be the nominee, guaranteeing us of the one thing we know the media can cover well: a big shiny melodramatic political battle royale in which tempers rage and garments are rent but whose outcome is already basically predetermined, barring the last minute disclosure of a videotape of Sotomayor setting kittens on fire.

In the case of Sotomayor, I am already hearing on MSNBC that the Judge makes both Democrats and Republicans "excited," and that Republicans will have a lot of "red meat" to chew on, but that in the end, they have a "zero chance" at preventing the nomination. But that's okay! What else were you planning on doing this summer.

As it happens, criticism of Sotomayor had already begun in earnest. Jeffrey Rosen's New Republic article, filled with anonymous sources, cropped quotes, and an admitted unwillingness to do much more beyond lightweight legal analysis, formed the Ur-text from which the first wave of criticism sprung. To wit: Sotomayor was a not-smart person who nevertheless went to Princeton, and a hotheaded Latina whose ethnic hotheadedness seemingly carried none of the accepted, value-added ethnic hotheadedness of Antonin Scalia. Everyone went a little crazy after that was written, with the Atlantic's Marc Ambinder making the lunatic assertion that spitting the innuendo's of unnamed axe-grinders was the model of "respectable intellectual" centrism, and Mark Halperin idiotically worrying about what would happen to white people.

You're also going to start hearing about a videotape of Sotomayor saying 'Whitey' saying the "court of appeals is where policy is made" and that she should never say such things on tape, and that proves she's a great big ol' activist liberal Judge liberally activizing all over the damn place. As usual, the people who talk about the tape have her comments precisely wrong.

Here's a useful debunk:

There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it's really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other. These rulings then become the policy of that particular circuit, serving as controlling precedent in future cases. This is just as true in the ultra-conservative Fourth Circuit as it is the more liberal Ninth Circuit.

But in Simplistic Republican World, none of this actually happens. Good conservative judges don't "make policy," they simply enforce the law. The law is apparently always clear. Indeed it's a wonder that lawyers even bother to appeal cases in the Fourth Circuit. After all, they should know that the conservative jurists in that circuit will simply "enforce the law" (because they wouldn't dream of "making policy"), so the outcome should be very predictable.

If there is a legal decision of Sotomayor's that will receive attention, it will be the Ricci v. DeStefano case - an affirmative action case involving the New Haven fire department that's being reviewed by the Supreme Court and which could be overturned during this frenzy over Sotomayor. For what it's worth, Rosen brought up this decision in his piece and was forced to admit that "the extent of Sotomayor's involvement in the opinion itself is not publicly known."

Of course, as Mike Allen truthfully admitted, the opposition to Sotomayor would have basically been opposition to anybody. The GOP is in need of a good hook for base-rallying and fundraising. And that will be countered by an orgy of base-rallying and findraising on the other side. And Obama will likely welcome the fight because it may smooth the road for various pieces of his domestic agenda, like health care reform.

But there's another aspect to Sotomayor that likely holds appeal for Obama, in that her campaign mirrors his own - the rough shots are coming early and with grim ubiquity, much in the same way that Obama faced down his toughest stuff early in the campaign. He likely reckons that long before the nomination process reaches its conclusion, the case against Sotomayor is going to feel very played out.

And at this very moment, David Shuster is making my point, quoting an unnamed former Clarence Thomas clerk, who describes Sotomayor as a "liberal judicial activist in the first order who things her own political agenda is more important than the law." Jeez, unnamed former Thomas clerk! Don't blow your wad all at once! ++


Anatomy Of The (Unsuccessful) Sotomayor Whisper Campaign
Brian Beutler, Talking Points Memo
May 26, 2009
http://tpmdc.talkingpointsmemo.com/2009/05/anatomy-of-the-unsuccessful-sotomayor-whisper-campaign.php

By nominating Sonia Sotomayor to serve on the Supreme Court, President Obama is not just making a bid for history. He's also bucking the will of several anonymous lawyers and law clerks who tried to run her off the road after it became clear that she was on his short list.

The anatomy of the Sotomayor whisper campaign is pretty straightforward. Once it was obvious that she was a serious contender, an unknown number of Second Circuit prosecutors and former clerks banded together and approached The New Republic's legal correspondent Jeffrey Rosen with attacks on the prospective nominee's fitness.

The sources told Rosen, among other things, that Sotomayor lacked the intellectual heft and good manners to serve on the court, and, in an article billed as the first in a series analyses of potential nominees, Rosen went with it.

From there, the attacks went viral.

Conservatives echoed the anonymous complaints (National Review's Mark Hemingway called the summa cum laude Princeton graduate and Yale Law Journal editor "dumb and obnoxious") and beltway journalists cited them as evidence that her Supreme Court fate was suddenly in jeopardy.

Rosen soon returned to the website of The New Republic--this time on their blog--to defend all aspects of his original article (with the exception of its breathless headline: "The Case Against Sotomayor" which he blamed on the magazine's editorial staff).

But in that very post, he changed his tone dramatically, writing, "Sotomayor is an able candidate--at least as able as some of the current Supreme Court justices--and if Obama is convinced she is the best candidate on his short list, he should pick her."

That finding stood in stark contrast to the conclusion he reached in his original article: "Given the stakes," Rosen wrote, "the president should obviously satisfy himself that he has a complete picture before taking a gamble."

But by then the meme couldn't be contained. It resurfaced less than a week later in two Washington Post articles and has colored today's coverage of the nomination, and of all cable news coverage of the SCOTUS stakes for the past month.

As for Rosen's series of analyses, he ultimately wrote only one additional article--a flattering piece about the qualifications of Seventh Circuit Court of Appeals Judge Diane Wood, in which he praised her "ability to get along with people with different points of view." ++



"I'm asking you to believe. Not just in my ability to bring about real change in Washington ... I'm asking you to believe in yours."
~ Barack Obama

In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.