Why is it even necessary to even have this "discussion"?

Listening to the Supreme Court's angels-on-the-head-of-a-pin dance yesterday was a textbook lesson in American idiocy. The bottom line is that when anyone tries to make an argument against gay marriage, they just sound foolish. There is no argument about this that holds any water when held up to the cold light of day, as Justices Kagan and Sotomayor, both of whom probably have a passing knowledge of that time in a woman's life when a procreation is no longer a factor, demonstrated as they tried valiantly yesterday to force "defender of opposite marriage" Charles Cooper to come up with one reason why gay marriage is a problem.

JUSTICE SOTOMAYOR: Outside of the -­ outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?

MR. COOPER: Your Honor, I cannot. I do not have any — anything to offer you in that regard. I think marriage is -­

JUSTICE SOTOMAYOR: All right. If that -­ if that is true, then why aren't they a class? If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?

MR. COOPER: No, Your Honor, we certainly are not. We — we are saying the interest in marriage and the — and the State 's interest and society's interest in what we have framed as responsible pro -­ procreation is — is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.

But to come back to your precise question, I think, Justice Sotomayor, you're probing into whether or not sexual orientation ought to be viewed as a quasi-suspect or suspect class, and our position is that it does not qualify under this Court's standard and -­ and traditional tests for identifying suspectedness.

The — the class itself is — is quite amorphous. It defies consistent definition as — as the Plaintiffs' own experts were — were quite vivid on. It — it does not — it — it does not qualify as an accident of birth, immutability in that — in that sense.

Again, the Plaintiffs -­

JUSTICE SOTOMAYOR: So you — so what — I don't quite understand it. If you're not dealing with this as a class question, then why would you say that the Government is not free to discriminate against them?

MR. COOPER: Well, Your Honor, I would think that — that — I think it's a — it's a very different question whether or not the Government can proceed arbitrarily and irrationally with respect to any group of people, regardless of whether or not they qualify under this Court's traditional test for suspectedness.

And — and the hypothetical I understood you to be offering, I would submit would create — it would -­ unless there's something that — that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated individuals, that — that is not what we think is at the — at the root of the traditional definition of marriage.

JUSTICE KAGAN: Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite — opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?

MR. COOPER: I — Your Honor, that's the essential thrust of our — our position, yes.

JUSTICE KAGAN: Is — is there — so you have sort of a reason for not including same-sex couples. Is there any reason that you have for excluding them? In other words, you're saying, well, if we allow same-sex couples to marry, it doesn't serve the State's interest. But do you go further and say that it harms any State interest?

MR. COOPER: Your Honor, we — we go further in — in the sense that it is reasonable to be very concerned that redefining marriage to — as a genderless institution could well lead over time to harms to that institution and to the interests that society has always — has — has always used that institution to address. But, Your Honor, I -­

JUSTICE KAGAN: Well, could you explain that a little bit to me, just because I did not pick this up in your briefs.

What harm you see happening and when and how and — what — what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?

MR. COOPER: Once again, I — I would reiterate that we don't believe that's the correct legal question before the Court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a -­

JUSTICE KENNEDY: Well, then are — are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? So you're conceding that.

MR. COOPER: No, Your Honor, no. I'm not conceding that.

JUSTICE KENNEDY: Well, but, then it — then it seems to me that you should have to address Justice Kagan's question.

MR. COOPER: Thank you, Justice Kennedy. I have two points to make on them.

The first one is this: The Plaintiffs' expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.

And among those real-world consequences, Your Honor, we would suggest are adverse consequences.

But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there's no way that she or anyone else could possibly know what the long-term implications of — of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.

Then Justices Breyer and Ginsburg get in on it:

JUSTICE BREYER: As long as you are on that, then I would like to ask you this: Assume you could distinguish California, suppose we accept your argument or accept Justice Scalia's version of your argument and that distinguishes California. Now, let's look at California. What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean, there are lots of people who get married who can't have children. To take a State that does allow adoption and say — there, what is the justification for saying no gay marriage? Certainly not the one you said, is it?

MR. COOPER: You're -­

JUSTICE BREYER: Am I not clear? Look, you said that the problem is marriage; that it is an institution that furthers procreation.

MR. COOPER: Yes, Your Honor.

JUSTICE BREYER: And the reason there was adoption, but that doesn't apply to California. So imagine I wall off California and I'm looking just there, where you say that doesn't apply. Now, what happens to your argument about the institution of marriage as a tool towards procreation? Given the fact that, in California, too, couples that aren't gay but can't have children get married all the time.

MR. COOPER: Yes, Your Honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples. Suppose, in turn -­

JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?

MR. COOPER: No, Your Honor, it would not be constitutional.

JUSTICE KAGAN: Because that's the same State interest, I would think, you know. If you are over the age of 55, you don't help us serve the Government's interest in regulating procreation through marriage. So why is that different?

MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile, and the traditional -­

(Laughter.)

JUSTICE KAGAN: No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.

(Laughter.)

MR. COOPER: Your Honor, society's -­ society's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that -­

JUSTICE KAGAN: Actually, I'm not even -­

JUSTICE SCALIA: I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, Are you fertile or are you not fertile?

(Laughter.)

JUSTICE SCALIA: I suspect this Court would hold that to be an unconstitutional invasion of privacy, don't you think?

JUSTICE KAGAN: Well, I just asked about age. I didn't ask about anything else. That's not -­we ask about people's age all the time.

MR. COOPER: Your Honor, and even asking about age, you would have to ask if both parties are infertile. Again -­

JUSTICE SCALIA: Strom Thurmond was — was not the chairman of the Senate committee when Justice Kagan was confirmed.

(Laughter.)

MR. COOPER: Very few men — very few men outlive their own fertility. So I just -­

JUSTICE KAGAN: A couple where both people are over the age of 55 -­

MR. COOPER: I -­

JUSTICE KAGAN: A couple where both people are over the age of 55.

MR. COOPER: And Your Honor, again, the marital norm which imposes upon that couple the obligation of fidelity -­

JUSTICE SOTOMAYOR: I'm sorry, where is this -­

CHIEF JUSTICE ROBERTS: I'm sorry, maybe you can finish your answer to Justice Kagan.

JUSTICE SOTOMAYOR: I'm sorry.

MR. COOPER: It's designed, Your Honor, to make it less likely that either party to that — to that marriage will engage in irresponsible procreative conduct outside of that marriage. Outside of that marriage. That's the marital — that's the marital norm. Society has an interest in seeing a 55-year-old couple that is — just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment, a marital commitment. So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.

JUSTICE GINSBURG: Mr. Cooper, we said that somebody who is locked up in prison and who is not going to get out has a right to marry, has a fundamental right to marry, no possibility of procreation.

MR. COOPER: Your Honor is referring, I'm sure, to the Turner case, and -­

JUSTICE GINSBURG: Yes.

MR. COOPER: — I think that, with due respect, Justice Ginsburg, way over-reads — way over-reads Turner against Safley. That was a case in which the prison at issue — and it was decided in the specific context of a particular prison where there were both female and male inmates, many of them minimum security inmates. It was dealing with a regulation, Your Honor, that had previously permitted marriage in the case of pregnancy and childbirth.

The Court — the Court here emphasized that, among the incidents of marriage that are not destroyed by that — at least that prison context, was the expectation of eventual consummation of the marriage and legitimation of — of the children. So that -

CHIEF JUSTICE ROBERTS: Thank you, Mr. Cooper.­

Here's the bottom line, folks:

1) In an age when marriage is no longer about blending families, or about the inheritance of land; where any man and any woman can marry in any state in the country even if they are both eighty years old and reproduction is never going to happen; when infertile couples or even fertile ones can adopt children unrelated to them; when it's possible for Newt Gingrich to be twice-divorced and still sell himself as a family-values Republican; when Mark Sanford can jet to Argentina on his low-income state's dime to fuck his girlfriend and then be welcomed back two years later as a "saved and forgiven" virtuous man; when houses of worship perform WEDDINGS, not MARRIAGES, it's time to just 'fess up and admit it: Marriage is simply this: A public commitment, made to one's friends, acquaintances, and the state, which ties people together in a variety of ways. And ultimately it just does not matter what two people do in their bedroom, or what their speech cadences are, or whether they like Judy Garland or Will. I. Am -- or both.

All over this country there are gay couples who live together just as a married couple does -- but when push comes to shove, such as medical issues and inheritance, these people are not regarded as first-line relations to each other in the way recognized spouses are. Gay couples are in everybody's neighborhood. They send their kids to school every morning and have cookouts on the weekends and cheer on their daughter's softball team and get up and go to work and mow their lawns on Saturday. And in most states, they and their children are not regarded as "real" families because Alexa has two daddies or Jayden has two mommies. This isn't just offensive, it's ridiculous. And if it didn't affect real people's lives, it would be comical -- like speculating on how many angels can dance on the head of a pin, or like the kid in George Carlin's "heavy mysteries" bit, where you come up with the most absurd situation possible and ask, "Would that then be a sin then, Fadda?"

My favorite quote on this comes not from the Court arguments yesterday, but from Amanda Marcotte:

It's been 44 years since the riots of Stonewall pushed the gay rights agenda into the public consciousness in a big way. Since then, Mick Jagger went from dangerous sex symbol to the guy dancing in a Maroon 5 video, hip-hop was invented, and the fashionable jean silhouette has changed roughly 187 times. We've given the homophobes plenty of time to think this over. It's time to move on without them.

Also too: Maureen Dowd, of all people (NYT).

Labels: Christofascist Zombie Brigade, civil rights, gay marriage, homophobia, Supreme Court

Roe v. Wade has been held up as the Holy Grail of reproductive rights politics for over a generation. NARAL has been so terrified that a case might get to the Supreme Court where Roe can be overturned that they've sat by quietly while personhood amendments and ultrasound requirements and other onerous restrictions on abortion have been put in place in an increasing number of states. At this point, Roe is largely symbolic. It really only exists as a benchmark protecting the arguably more important decision, Griswold v. Connecticut, which is next in the crosshairs of the misogynist right.

Most of Barack Obama's base is pretty damn disappointed in him. Some of the disappointment is like that of a child who didn't get the pony he wanted. Some of it is legitimate outrage at Obama's continuation of much of the Bush Doctrine in the Middle East and at his coddling of the banks. It's easy to be disappointed in him and insist that it really makes no difference who is elected in November.

Except that it does. If Stephen Breyer and Ruth Bader Ginsburg both retire, the next president will make two appointments. It's pretty clear that if Willard Rmoney is president, we'll see two Scalia/Alito clones. We've already seen what happens when an ideological court puts its own agenda ahead of the Constitution. Citizens United may very well allow the Koch brothers and Sheldon Adelson to buy themselves a president. Imagine two more of them.

Roe is just the canary in the coal mine for a slew of potential decisions that will reduce the rights of the individual, the protections of people against a corporate/police state and further concentrate power into the hands of the few. And Willard Rmoney made very clear on David Gregory's Hackity Hack Hack Hack Hack Show this morning that if he has his way, Roe will be history:

Well, I don't actually make the decision the Supreme Court makes and so they'll have to make their own decision. But, for instance, I'll reverse the president's decision on using U.S. funds to pay for abortion outside this country. I don't think also the taxpayers here should have to pay for abortion in this country.

Those things I think are consistent with my pro-life position. And I hope to appoint justices for the Supreme Court that will follow the law and the constitution. And it would be my preference that they reverse Roe V. Wade and therefore they return to the people and their elected representatives the decisions with regards to this important issue.

So unless you agree with the wingnuts that the dirty whores deserve to be punished with motherhood they don't want (because that's what it's all really about anyway), then yes, you DO have to hold your nose once again and vote for the lesser of two evils.

Labels: abortion, Barack Obama, individual freedoms, reproductive rights, Roe v. Wade, Supreme Court

Paul Krugman writes today about how the mini-scandal surrounding New Jersey Governor and bullying wet dream VP candidate of the 24 x 7 news-o-tainment cycle Chris Christie's ties to a corrupt and ineptly run private system of halfway houses. The poor job being done by many private companies that handle activities that used to be handled by government is the great untold story of the conservative doctrine. As Krugman notes, when a company is given government money in a no-bid contract, or when a company is chosen from multiple bids because of its ties to lawmakers, the much-vaunted "free market" is hardly in place.

But of even more significance than Krugman's column, and what it says about the Randian dream nation that surely awaits us under the presidency of Willard Rmoney and his dressage horse, is a mention in the comments section of the Powell memo of 1971.

I wasn't familiar with this memo, but the miracle of Teh Google revealed it to me. It's a mark of how insane the Supreme Court has become in recent years that Lewis Powell is now remembered as a moderate. But in 1971, just months before Richard Nixon nominated him to the Supreme Court, Powell sent a letter to U.S. Chamber of Commerce director Eugene Sydnor, Jr. Reading this memo today, we can see that this letter, which pre-dates Ronald Reagan's presidency by nearly a decade, is the seed corn for the social Darwinist, out-of-control corporatist culture and government which we see today. Powell focuses on what he believed to be the pernicious influence of higher education in fomenting the then-ongoing rebellion against corporate interests.

Some excerpts (the rest is here):

The overriding first need is for businessmen to recognize that the ultimate issue may be survival -- survival of what we call the free enterprise system, and all that this means for the strength and prosperity of America and the freedom of our people.

The day is long past when the chief executive officer of a major corporation discharges his responsibility by maintaining a satisfactory growth of profits, with due regard to the corporation's public and social responsibilities. If our system is to survive, top management must be equally concerned with protecting and preserving the system itself. This involves far more than an increased emphasis on "public relations" or "governmental affairs" -- two areas in which corporations long have invested substantial sums.

A significant first step by individual corporations could well be the designation of an executive vice president (ranking with other executive VP's) whose responsibility is to counter-on the broadest front-the attack on the enterprise system. The public relations department could be one of the foundations assigned to this executive, but his responsibilities should encompass some of the types of activities referred to subsequently in this memorandum. His budget and staff should be adequate to the task.

The assault on the enterprise system was not mounted in a few months. It has gradually evolved over the past two decades, barely perceptible in its origins and benefiting (sic) from a gradualism that provoked little awareness much less any real reaction.

Although origins, sources and causes are complex and interrelated, and obviously difficult to identify without careful qualification, there is reason to believe that the campus is the single most dynamic source. The social science faculties usually include members who are unsympathetic to the enterprise system. They may range from a Herbert Marcuse, Marxist faculty member at the University of California at San Diego, and convinced socialists, to the ambivalent liberal critic who finds more to condemn than to commend. Such faculty members need not be in a majority. They are often personally attractive and magnetic; they are stimulating teachers, and their controversy attracts student following; they are prolific writers and lecturers; they author many of the textbooks, and they exert enormous influence -- far out of proportion to their numbers -- on their colleagues and in the academic world.

Social science faculties (the political scientist, economist, sociologist and many of the historians) tend to be liberally oriented, even when leftists are not present. This is not a criticism per se, as the need for liberal thought is essential to a balanced viewpoint. The difficulty is that "balance" is conspicuous by its absence on many campuses, with relatively few members being of conservatives or moderate persuasion and even the relatively few often being less articulate and aggressive than their crusading colleagues.

This situation extending back many years and with the imbalance gradually worsening, has had an enormous impact on millions of young American students. In an article in Barron's Weekly, seeking an answer to why so many young people are disaffected even to the point of being revolutionaries, it was said: "Because they were taught that way."10 Or, as noted by columnist Stewart Alsop, writing about his alma mater: "Yale, like every other major college, is graduating scores' of bright young men ... who despise the American political and economic system."

As these "bright young men," from campuses across the country, seek opportunities to change a system which they have been taught to distrust -- if not, indeed "despise" -- they seek employment in the centers of the real power and influence in our country, namely: (i) with the news media, especially television; (ii) in government, as "staffers" and consultants at various levels; (iii) in elective politics; (iv) as lecturers and writers, and (v) on the faculties at various levels of education.

Many do enter the enterprise system -- in business and the professions -- and for the most part they quickly discover the fallacies of what they have been taught. But those who eschew the mainstream of the system often remain in key positions of influence where they mold public opinion and often shape governmental action. In many instances, these "intellectuals" end up in regulatory agencies or governmental departments with large authority over the business system they do not believe in.

If the foregoing analysis is approximately sound, a priority task of business -- and organizations such as the Chamber -- is to address the campus origin of this hostility. Few things are more sanctified in American life than academic freedom. It would be fatal to attack this as a principle. But if academic freedom is to retain the qualities of "openness," "fairness" and "balance" -- which are essential to its intellectual significance -- there is a great opportunity for constructive action. The thrust of such action must be to restore the qualities just mentioned to the academic communities.

The Chamber should insist upon equal time on the college speaking circuit. The FBI publishes each year a list of speeches made on college campuses by avowed Communists. The number in 1970 exceeded 100. There were, of course, many hundreds of appearances by leftists and ultra liberals who urge the types of viewpoints indicated earlier in this memorandum. There was no corresponding representation of American business, or indeed by individuals or organizations who appeared in support of the American system of government and business.

Every campus has its formal and informal groups which invite speakers. Each law school does the same thing. Many universities and colleges officially sponsor lecture and speaking programs. We all know the inadequacy of the representation of business in the programs.

It will be said that few invitations would be extended to Chamber speakers.11 This undoubtedly would be true unless the Chamber aggressively insisted upon the right to be heard -- in effect, insisted upon "equal time." University administrators and the great majority of student groups and committees would not welcome being put in the position publicly of refusing a forum to diverse views, indeed, this is the classic excuse for allowing Communists to speak.

The two essential ingredients are (i) to have attractive, articulate and well-informed speakers; and (ii) to exert whatever degree of pressure -- publicly and privately -- may be necessary to assure opportunities to speak. The objective always must be to inform and enlighten, and not merely to propagandize.

What Can Be Done About the Public?
Reaching the campus and the secondary schools is vital for the long-term. Reaching the public generally may be more important for the shorter term. The first essential is to establish the staffs of eminent scholars, writers and speakers, who will do the thinking, the analysis, the writing and the speaking. It will also be essential to have staff personnel who are thoroughly familiar with the media, and how most effectively to communicate with the public. Among the more obvious means are the following:

Television
The national television networks should be monitored in the same way that textbooks should be kept under constant surveillance. This applies not merely to so-called educational programs (such as "Selling of the Pentagon"), but to the daily "news analysis" which so often includes the most insidious type of criticism of the enterprise system.12 Whether this criticism results from hostility or economic ignorance, the result is the gradual erosion of confidence in "business" and free enterprise.

This monitoring, to be effective, would require constant examination of the texts of adequate samples of programs. Complaints -- to the media and to the Federal Communications Commission -- should be made promptly and strongly when programs are unfair or inaccurate.

Equal time should be demanded when appropriate. Effort should be made to see that the forum-type programs (the Today Show, Meet the Press, etc.) afford at least as much opportunity for supporters of the American system to participate as these programs do for those who attack it.

Other Media
Radio and the press are also important, and every available means should be employed to challenge and refute unfair attacks, as well as to present the affirmative case through these media.

The Scholarly Journals
It is especially important for the Chamber's "faculty of scholars" to publish. One of the keys to the success of the liberal and leftist faculty members has been their passion for "publication" and "lecturing." A similar passion must exist among the Chamber's scholars.

Incentives might be devised to induce more "publishing" by independent scholars who do believe in the system.

There should be a fairly steady flow of scholarly articles presented to a broad spectrum of magazines and periodicals -- ranging from the popular magazines (Life, Look, Reader's Digest, etc.) to the more intellectual ones (Atlantic, Harper's, Saturday Review, New York, etc.)13 and to the various professional journals.

Books, Paperbacks and Pamphlets
The news stands -- at airports, drugstores, and elsewhere -- are filled with paperbacks and pamphlets advocating everything from revolution to erotic free love. One finds almost no attractive, well-written paperbacks or pamphlets on "our side." It will be difficult to compete with an Eldridge Cleaver or even a Charles Reich for reader attention, but unless the effort is made -- on a large enough scale and with appropriate imagination to assure some success -- this opportunity for educating the public will be irretrievably lost.

Paid Advertisements
Business pays hundreds of millions of dollars to the media for advertisements. Most of this supports specific products; much of it supports institutional image making; and some fraction of it does support the system. But the latter has been more or less tangential, and rarely part of a sustained, major effort to inform and enlighten the American people.

If American business devoted only 10% of its total annual advertising budget to this overall purpose, it would be a statesman-like expenditure.

This manifesto then goes on to discuss how business can foster its own interests in government, in the court system, and by marshaling stockholder power. It is a stunning call to arms in which we can see the birth of what we see today -- corporate-owned media, "conservative" think tanks which provide pseudo-intellectual cover for radical right-wingers who at the time this letter was written were regarded as John Bircher kooks, the rise of so-called "Christian colleges" who parrot the corporatist line as much as they inculcate retrograde moral "values". And then finally, there's Willard Rmoney -- the perfect embodiment of Lewis Powell's dream.

Labels: corporatism, Supreme Court, wingnuttia

The idea of personhood is clearly somewhat fluid on the right. We know how the right worships not just fetuses, but zygotes; not just zygotes, but fertilized eggs -- to the point that some of them want to make miscarriage a felony. We also know how once fetuses find their way into the world, they're on their own.

Last year the Supreme Court decided in the Citizens United case that corporations are people who can contribute as much as they like to political campaigns without attribution. But yesterday, in a completely inconsistent decision with their lean towards unfettered corporate power, the Court decided that corporate personhood only goes so far, and doesn't include the ability to claim "personal privacy" and bar release of federal documents about corporate activities from Freedom of Information Act requests:

Corporations do not have a right to "personal privacy," the Supreme Court ruled unanimously, at least when it comes to the Freedom of Information Act and the release of documents held by the government.

Last year's ruling giving companies a free-speech right to spend money on campaign ads prompted liberal critics to say the court's conservatives were biased in favor of corporate rights.

While not alluding to the criticism, Chief Justice John G. Roberts Jr. took a scalpel to a corporate-rights claim from AT&T Inc. that its "personal privacy" deserves to be protected. The ordinary meaning of "personal" does not refer to an impersonal company, he said.

"We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence or personal tragedy as referring to corporations or other artificial entities," he wrote. "In fact, we often use the word 'personal' to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company's view."

The decision means the Federal Communications Commission may release documents that were compiled during an investigation in 2004 over whether AT&T had overcharged schools and libraries for use of the Internet. The company paid a $500,000 settlement.

No right to privacy for corporations? Perhaps the Court thinks corporations are female.

Labels: privacy, Supreme Court

How else should a Jew answer an obviously inflammatory and dumbass question like this?

Sen. Lindsey Graham (R-S.C.) asked the solicitor general where she was Christmas Eve during a discussion about the bombing attempt of an airliner in Detroit.

"Like all Jews, I was probably at a Chinese restaurant," Kagan quipped.

Coming up tomorrow: Kagan answers the other Question They Don't Have The Guts To Ask by talking about Lilith Fair.

Labels: assholes, bigotry, chickenshit weasel Republicans, Supreme Court

How any of the teabaggers get the idea that Barack Obama is some kind of Marxist, I have no idea. When his health care plan delivers hundreds of thousands of new customers to insurance companies and his economic advisers are some of the very people who contributed to the economic meltdown of 2008, I just don't see where this comes from. And now it appears he's going to nominate someone who was an adviser to Goldman Sachs from 2005 to 2008 to replace John Paul Stevens on the Supreme Court:

President Barack Obama will nominate U.S. Solicitor General Elena Kagan to serve as an associate justice on the U.S. Supreme Court, NBC News’ Pete Williams reported late Sunday night.

Kagan, 50, served as the Dean of Harvard Law School from 2003 to 2009. Obama nominated her to serve in her current post as solicitor general early in 2009, and she won Senate confirmation by a vote of 61-31. She is the first woman to serve as solicitor general of the United States.

She was widely viewed as a front-runner when Obama was considering candidates for a Supreme Court opening last year, but the president ultimately chose Sonia Sotomayor for the job.

Glenn Greenwald has done a ton of advance work on what Kagan's nomination will mean for the Court -- little if any of it good. Kagan is either a) a crony appointment, coming out of Chicago as she does, b) yet another Obama attempt to curry favor with conservatives for whom nothing he does will be acceptable; or c) viewed as somehow confirmable because she has very little written record on hot-button issues.

I'd like to believe that this is an example of the mythical 11-dimensional chess that some progressives still long to believe the Obama administration is playing, because they can't yet face the reality that Barack Obama is every bit as much a corporate-privilege Democrat as Hillary Clinton would have been. I'd like to believe that he's throwing Kagan out there so when the Republicans filibuster, he can say "I gave you a moderate and you filibustered, now here's Diane Wood." But there is absolutely nothing in Obama's track record so far that would give any indication of such a strategy. No, it looks like Obama too serves corporatist masters, and wants to put a Justice in there who will do the same.

Labels: Barack Obama, corporatism, Supreme Court

This comes to us via Doug over at Balloon Juice, and it's absolutely worth your time. Justin Fox of Harvard Business Review recently sat down with Brian Murphy, a history professor at Baruch College, to talk about the Founding Fathers' record and writings in regard to corporate personhood:

A couple months ago the Supreme Court ruled that restricting corporate political spending amounted to restricting free speech. In this view, corporations are pretty much equivalent to people. Would that have seemed reasonable to the Founding Fathers?

In a word, no.

I read this opinion carefully — I'm trained as a historian, not a lawyer. Chief Justice Roberts lays out an ideologically pure view of corporations as associations of citizens — leveling differences between companies, schools and other groups. So in his view Boeing is no different from Harvard, which is no different from the NAACP, or Citizens United, or my local neighborhood civic association. It's lovely prose, but as a matter of history the majority is simply wrong.

Let me put it this way: the Founders did not confuse Boston's Sons of Liberty with the British East India Company. They could distinguish among different varieties of association — and they understood that corporate personhood was a legal fiction that was limited to a courtroom. It wasn't literal. Corporations could not vote or hold office. They held property, and to enable a shifting group of shareholders to hold that property over time and to sue and be sued in court, they were granted this fictive personhood in a limited legal context.

Early Americans had a far more comprehensive and nuanced understanding of corporations than the Court gives them credit for. They were much more comfortable with retaining pre-Revolutionary city or school charters than with creating new corporations that would concentrate economic and political power in potentially unaccountable institutions. When you read Madison in particular, you see that he wasn't blindly hostile to banks during his fight with Alexander Hamilton over the Bank of the United States. Instead, he's worried about the unchecked power of accumulations of capital that come with creating a class of bankers.

So even as this generation of Americans became comfortable with the idea of using the corporate form as a way to set priorities and mobilize capital, they did their best to make sure that those institutions were subordinate to elected officials and representative government. They saw corporations as corrupting influences on both the economy at large and on government — that's why they described the East India Company as imperium in imperio, a sort of "state within a state." This wasn't an outcome they were looking to replicate.

So much for "original intent." But then, I don't think anyone to the left of Pat Buchanan had any illusions that John Roberts was anything other than a hard-right ideologue who doesn't give a flying fuck about what's in the Constitution or what the Founding Fathers' intent was. His agenda is Of the Corporations, For the Corporations, By the Corporations.

Labels: corporatism, JOhn Roberts, Supreme Court, wingnuttia

It's none other than Supreme Court Justice Sammy the Stem Cell Alito:

OK, so he didn't shout it out. He didn't have to. But as John Aravosis notes:

Highly inappropriate for Alito to do this. You'll notice the Sup Ct doesn't even clap when the president enters. They are not supposed to respond to anything, lest it show bias.

Labels: assholes, Supreme Court

Until Sarah Palin came along, MoDo was the archetype of the aging high school prom queen who can't deal with the fact that she's not the prettiest, cutest girl in school anymore. She's dealt with this by becoming a tiresome, snippy woman, snarking about trivia as if Biff and Bobby and Butch are still trying to get her up to Lover's Lane after the Big Dance. But as I worked from home the other day after my all-night marathon of trying to make up a week's worth of slippage in my project's schedule (little of which can be attributable to me), I nearly fell off my chair listening to Sen. Tom Coburn's carefully-worded opening statement in which he essentially said that he wants a Justice who will uphold the Noble Tradition of White Guy Privilege and Superiority that his constituents in Oklahoma hold dear.

The Republicans' repulsive display of "Some of my best friends are Hispanic" (sic) and their pathetic attempt to make it Miguel Estrada instead of Sonia Sotomayor sitting in front of them demonstrated that the issue is neither that Sotomayor is Latina or a woman, it's that she is a tough tomato from the Bronx -- part of New York City, the capital of the Godless Heathen Liberal Homosexual Communist Jewy Jew Northeast. If she were Sonia Sotomayor from Texas with a record akin to that of, say, Edith Jones no one would be concerned. But she is a Noo Yawkuh, and the Revenge of Estrada must be exacted. Because while Miguel Estrada, like Clarence Thomas before him, could have been relied on to issue rulings that would reinforce White Guy Privilege in perpetuity, someone like Sonia Sotomayor may not be as reliable in guarding good Christian Caucasians like, oh, say, John Ensign and Mark Sanford and Sarah Palin from the Marauding Hordes from the South.

Enter MoDo, who cuts through all the talk about the Constitution not being malleable and allusions to the Geneva Conventions being some kind of One World Government plot and gets to what Tom Coburn and Lindsey Graham and Jeff Sessions are REALLY worried about:

You can’t judge a judge by her cover.

Despite the best efforts of Republicans to root out any sign that Sonia Sotomayor has emotions that color her views on the law, the Bronx Bomber kept a robotic mask in place.

A wise Latina woman with the richness of her experiences would more often than not know that a gaggle of white Republican men afraid of extinction are out to trip her up.

After all, these guys have never needed to speak inspirational words to others like them, as Sotomayor has done. They’ve had codes, handshakes and clubs to do that.

So when Republican Senator Jon Kyl, without so much as a howdy-do, went at Sotomayor, and soon was asking her if she agreed with Barack Obama’s contention, when he voted against John Roberts, that a judge’s heart is important, the would-be justice was as adroit as her idol Nancy Drew.

I suppose it's to Sotomayor's credit that she's able to sit through all the manure being thrown around the Judiciary Committee without telling these gasbags just how full of shit they are. But meanwhile I sit here hoping beyond hope that in her effort to just get this over with, she doesn't agree to sign a pledge that White Male Privilege must be preserved at all cost, and anything else is "empathy."

Labels: idiocy, racism, Republicans, Supreme Court

I try not to watch this crap anymore. The cable company here has done me a strangely backwards favor by taking away my ability to stream MSNBC or much of anything to my desktop besides dreaded network TV. So its odd these days that I'm catching Tweety when he's on as opposed to on YouTube or DVR when he's done something idiotic that is worth a couple of minutes of my time. This morning, in the here and now, I am reminded how much of a hack Tweety is, and I'm wondering how the panel manages to sit there, controlled by the "stories" of the week, as prescribed by the M$M talking points, and following the mundane surface doings of the new President, without screaming a la Howard Beale. Its all so predictable and boring, and maybe Tweety needs to consider that if he really wants those ratings that he needs, he might try to talk about the real stories and what they mean, if he's even capable of that.

So, if Obama is going to travel to Normandy to mark D-day, then we have to go over the foibles of other presidents who fell down stairs and offended one person or another; Bill Clinton looking through binoculars with the lens caps on, or worse, smoking a cigar in public after the Lewinsky scandal...wink, wink...And how will Obama fit into the meme that they are busily preparing for him? Its all so exciting that I can hardly wait! Of course, Obama spoils the fun time and again because he is so too slick.



Look, I know that even these political head brainy shows are a microcosm of the American psyche, and that there was never a NASCAR or Grand Prix fan who wasn't on the edge of their seat waiting for the crash. I know that we look for someone to trip and fall or, more recently, embarrass our country diplomatically, but I was sort of hoping that we were going to send President Obama out into the world to smooth over the impression of the ugly, stupid American that Bush spent eight years honing. It used to be that we waited for the hockey fight or Abbot and Costello to get lost in the haunted mansion as a way to get our ya-ya's out, but somewhere between Gerald Ford falling down the stairs of a plane, eliciting fond ribbing and Clinton's cigars, a huge helping of leader hatred was thrown in, and it has somehow become a sport to expect something any minute that is gonna stamp a presidency with a meme that will follow it into forever. So far the Obamas have avoided this, causing some strange sorta anger and shot in the dark labeling attempts; socialist, liar, not doing what he promised in the campaign...whatever...the reality is that things are so much better than they would have been with McCain, and though we should expect the best, lets not throw out the baby with the bathwater...or something like that.

The important question to ask yourself is what are these main stream talking points turning us away from; What are we missing here? I keep hearing that President Obama is not following his campaign promises exactly to the letter, but I'm not so sure that we want someone in that office who isn't able to adapt on the fly. I'm as worried as the next person, and I'm willing to fight for the more important issues, like Afghanistan and gay marriage, but I'm also acutely aware that in the big picture we need to look at who he has nominated to a lifetime appointment on the supreme court! Look at what is happening that is really going to shape trends in humanity in the next 100 or 200 years? What will our world be like with 2 or 3 new judges on our highest court that resemble the actual reality of the make up of America? This is huge! This is the kind of long term decision that along the way might grant the wishes of people who are so focused on a single issue that they are ready to jump ship immediately. Sheesh...Americans have no patience for sure, but this is ridiculous, and self destructive.



To spend so much time on one piece of a speech from eight years ago, indicates to me that they have nothing! Further, what Judge Sotomayor said is true! Is Limbaugh or Tweety or anyone else going to say with a straight face that Alito's rulings don't have something to do with his conservative, Italian, white upbringing? Isn't the point that a judges follow the rule of law, regardless of their backgrounds, but also bringing their background into their decisions that one interfere with the law? All indications are that she is a judge with a record of such decisions, and if this is all they can pull out, then we had better get ready for a different looking Supreme Court.... yay!...and in turn, we will see the kinds of changes that the people of this country want; not what special interests can conjure with swift boating and hysteria.

This is less an issue of what we Americans want, than a shaping of the story in a pathetic, grasping way by the disgruntled minority. Its unbelievable to me that the usual suspects still are giving a free platform to the usual suspects to say the same old crap. I know that the news guys miss Bush as much as the comedians do because there was so much to work with there, but maybe we'll have to get back to our favorite TV shows, America's Got Talent or whatever it is that allows us to make fun of each other, and extend again some respect where respect is due. Maybe along that way we can demand some focus on the fucking war(s) and how we are going to go forward!

If every public servant can be swift boated in this way (did I mention that this is extrapolated from one passage in a speech from eight years ago?) and if the story can be twisted and fed back to us as something that we somehow want to obsess about, then the inmates still have control of the asylum and maybe its time for a change of management at these networks, or at least some reregulation of media content in general.

Lets discuss Afghanistan and the torture issue. Lets discuss indictment of the criminals and what that would mean to us going forward. It occurs to me that the fear of Judge Sotomayor is more about the fact that she does have respect for the rule of law (for the people as opposed to bending and changing it in favor of large corporations.) The grasping by the right, and the insane racial comments tell me that they protesteth too much and that this may be someone who will fairly represent us regardless of who they're duck hunting with on the weekends.

If you want to contact the folks at NBC about their inane programming choices click here.

c/p RIP Coco

Labels: Chris Matthews, mainstream media, Supreme Court

Castration anxiety much from the right about the nomination of Sonia Sotomayor to the Supreme Court? I myself love the sound of wealthy white male talking heads in the media mewling about the oppression of white males in the morning.

Last night I responded to a comment from our resident troll Barry (who's been awfully quiet lately since his party went completely off the deep end), whose concern about the Constitution is limited solely to gun rights, had expressed his concern about the Sotomayor nomination to the Supreme Court.

I think even if Barack Obama had nominated Robert Bork to the Court, I think the wingnuts would have similarly gone bonkers, because it's all about this stealth Muslim terrorist radical Negro (sic) having the opportunity to make such decisions. I'm no legal expert, but from what I'm reading, Sotomayor is not the judicial equivalent of William Ayers; she's actually a fairly centrist judge who relies heavily on precedent when deciding cases. In fact, as the New York Times reports, Sotomayor isn't always favorable to the idea that a woman's right to terminate a pregnancy is absolute, as today's New York Times points out:

In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China’s abortion policy. “The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child,” she wrote, also taking note of “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.”

nd in a 2008 case, she wrote an opinion vacating a deportation order for a woman who had worked in an abortion clinic in China. Although Judge Sotomayor’s decision turned on a technicality, her opinion described in detail the woman’s account of how she would be persecuted in China because she had once permitted the escape of a woman who was seven months pregnant and scheduled for a forced abortion. In China, to allow such an escape was a crime, the woman said.

In a 2004 case, she largely sided with some anti-abortion protesters who wanted to sue some police officers for allegedly violating their constitutional rights by using excessive force to break up demonstrations at an abortion clinic. Judge Sotomayor said the protesters deserved a day in court.

Judge Sotomayor has also ruled on several immigration cases involving people fighting deportation orders to China on the grounds that its population-control policy of forcible abortions and birth control constituted persecution.

Now these cases don't deal specifically with Roe, but the case which has Barry (and presumably others whose concern with the Bill of Rights begins and ends with the right to bear shoulder-fired missile launchers to hunt deer) up in arms (heh) is Maloney v. Cuomo, in which Sotomayor ruled with the majority that a New York State law against possession of nunchaku did not violate the Second Amendment:

The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state”); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding “that the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts” and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we “must follow Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’”

If anything, this decision should hearten the fetophiles, because it gives an indication that Sotomayor might be favorable to throwing the matter back to the states.

Jill Filipovic of Feministe is relatively unconcerned about the nomination even in the face of Sotomayor's vote in Planned Parenthood Federation of America, Inc. v. Agency for International Development:

The First Amendment claim was dismissed because the issue had already been decided in the Planned Parenthood case. The Due Process claim was dismissed for lack of prudential standing, because CRLP's complaint did not fall within the "zone of interests" protected by the Due Process Clause - it was a third party (the foreign NGOs), not CRLP, whose rights are constitutionally unclear because of the Gag Rule. The Equal Protection claim was dismissed because the Gag Rule's privileging of anti-abortion views did not infringe upon a fundamental Constitutional right or target a suspect class (legalese for a classification of groups which have historically been subject to discrimination, and therefore receive increased scrutiny under the Equal Protection Clause); further, Sotomayor pointed out that "the Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."

The Center for Reproductive Law and Policy lost the case, and the Global Gag Rule continued to compromise women's health around the globe until Barack Obama took office.

That outcome disheartened feminists, liberals and reproductive justice advocates, and I wish it had been decided differently. But the decision wasn't necessarily a bad one - and it absolutely should not stop progressive women's rights activists from supporting her nomination.

If anything, CRLP v. Bush highlights precisely why Sotomayor should, in a sane world, be an easy confirmation: She sticks to the rule of law, respects precedent and writes thoughtful and reasoned opinions. She was nominated to the federal district court by George H.W. Bush. Her decisions are left-leaning insofar as she generally seeks to protect Constitutional rights by supporting religious freedom and free speech, and she often sides with the plaintiffs in discrimination cases - hardly "activist" material. But she's not a liberal dream by any stretch. She has some bad First Amendment cases to her name (Doninger v. Niehoff, where she sided with a school that disqualified a student from running for senior class secretary after the student posted a vulgar school-related message on her blog), and some bad Fourth Amendment ones (United States v. Howard, where she held it was constitutional for state troopers to entice suspects away from their cars in order to allow other troopers to search the vehicles for drugs). Those cases, though, are the exceptions rather than the rule; generally, Sotomayor follows a fairly consistent Constitutional philosophy, and errs on the side of maintaining rather than limiting rights.

Given her history, it's hard to grasp why conservatives brand her "a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written," as Wendy E. Long, counsel to the right-wing Judicial Confirmation Network, put it. Sotomayor has clearly and consistently deferred to "the law as written" -- she's considerably less activist and dogmatic than Bush's two Supreme Court appointees, John Roberts and Samual Alito. Unfortunately for conservatives, the law as written does affirm the rights to speak without governmental intervention, to practice your religion freely, to be free from state-sponsored religious exercises, to maintain your privacy, and to retain certain protections even if you are a suspected criminal or a criminal defendant.

We were never going to get a progressive dream nominee from this president, just as we weren't going to get a progressive dream agenda from this president. Anyone who painted his or her own agenda onto the face of Barack Obama during the campaign because he was inspiring just wasn't paying attention to this guy's record. This is a thoughtful, careful man who has spent his entire life straddling two different worlds, and there was no reason to believe he'd be any different as president. This is precisely the kind of attempt at a consensus nominee (albeit with the added benefit of being a woman and having the potential to shut the door between Republicans and Latino voters for good) I would expect him to make. If the wingnuts would crawl out of the deep end of the insanity pool for five minutes they might see that.

But then they wouldn't be nearly as much fun to watch.

Labels: abortion, gun nuts, Sonia Sotomayor, Supreme Court, wingnuttia

You know who I'm talking about. I'm talking about the guy from Guatemala or Mexico who silently weed-whacks your lawn every week; the one you don't think about how much he gets paid or IF he gets paid because it's just too uncomfortable. Well, not MY lawn guys, because the guy who owns MY lawn service charges five bucks more per mowing than his competition, and 65 bucks/man/hour for spring and fall cleanup, but he provides health insurance for HIS guys, who are actual employees instead of exploited day laborers.

These are the people Republicans fear even more than they fear gay marriage, Gitmo detainees with superpowers who can break out of supermax prisons when no one else ever has, Nancy Pelosi's scary genitalia, and liberals who kill babies for sport. They think Michael Steele gets them off the hook for their past Scary Negroes(sic) rhetoric, but Scary Brown People from South of the Border are still fair game:

Republican members of Congress have been trying to subtly raise questions about Sonia Sotomayor’s objectivity — simply because of her non-traditional race, gender, and upbringing. Rep. Lamar Smith (R-TX) said today that he is concerned Sotomayor has shown “personal bias based on ethnicity and gender.” Similarly, Sen. James Inhofe (R-OK) said in a statement today that Sotomayor may be subject to the “undue influence” of her race and gender:

Of primary concern to me is whether or not Judge Sotomayor follows the proper role of judges and refrains from legislating from the bench. Some of her recent comments on this matter have given me cause for great concern. In the months ahead, it will be important for those of us in the U.S. Senate to weigh her qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences.

Responding to Inhofe, The American Prospect’s Dana Goldstein writes, “Yes. Because the worldviews of John Roberts, Sam Alito, John Paul Stevens, Anthony Kennedy, Stephen Breyer, and Antonin Scalia are not impacted at all by their white male identities. White men are raceless and genderless, haven’t you heard?”

Sotomayor is a Bush Sr. appointee, in case you haven't heard that yet. Of course Bush Sr. is no longer regarded as a Republican by the Party of Psychopaths. But this is a stroke of genius by Barack Obama. Rake her over the coals and you not only piss off the Latino community, but also ensure that if you block this nomination, he'll give you a REAL liberal. Sort of like George W. Bush did when he imposed the activist Samuel Alito on us.

Labels: Barack Obama, immigration, Latinos, Supreme Court

Because you simply cannot do business with these people, so don't even try:

If President Obama nominates Judge Diane P. Wood to the Supreme Court, conservatives plan to attack her as an “outspoken” supporter of “abortion, including partial-birth abortion.”

If he nominates Judge Sonia Sotomayor, they plan to accuse her of being “willing to expand constitutional rights beyond the text of the Constitution.”

And if he nominates Kathleen M. Sullivan, a law professor at Stanford, they plan to denounce her as a “prominent supporter of homosexual marriage.”

Preparing to oppose the confirmation of Mr. Obama’s eventual choice to succeed Justice David H. Souter, who is retiring, conservative groups are working together to stockpile ammunition. Ten memorandums summarizing their research, obtained by The New York Times, provide a window onto how they hope to frame the coming debate.

The memorandums dissect possible nominees’ records, noting statements the groups find objectionable on issues like abortion, same-sex marriage, the separation of church and state and the propriety of citing foreign law in interpreting the Constitution.

While conservatives say they know they have little chance of defeating Mr. Obama’s choice because Democrats control the Senate, they say they hope to mount a fight that could help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats.

Labels: Republican id-driven two-year-olds, Supreme Court, wingnuttia

Justice David Souter is retiring:

David Hackett Souter had only been on a federal appeals court bench for a few months when he was tapped to replace liberal lion William Brennan, a choice many Republicans hoped would move the high court rightward and reshape American law.

"I think that is good news for all of us who are committed to the Constitution of the United States," said President Bush. "He'll be a superb justice for the Supreme Court."

In reality, Souter was in many ways a typical, old-fashioned Yankee Republican -- a moderate with an independent, even quirky streak. Whether he became more liberal in his views after joining the Supreme Court, as many conservatives believe, may depend on your politics.

"Justice Souter will never escape the label of having been an enormous disappointment, a traitor to the right," said Thomas Goldstein, a Washington appellate attorney and founder of Scotusblog.com. "It instead created the opportunity to entrench a series of more liberal rulings. So he became the right's greatest failure and we will forever hear the mantra 'No More Souters' from conservatives."

Colleagues dismiss suggestions that liberal colleagues on the bench helped move Souter to the left.

"I find that incredibly unbelievable," said Rebecca Tushnet, a former Souter law clerk and professor at Georgetown Law Center. "He was faced with different issues on the Supreme Court than he was as a state official. A Supreme Court justice requires you to make different decisions, ones that aren't always consistent with your politics. And remember the Republican Party of Nixon is a different party than the one we have today, and we have a number of judges who came out of that earlier Republican Party who may not be in line with the priorities of people in power in Republican circles today."

I remember when Souter was appointed to the Court. I remember referring to him in conversation as "Norman Bates", because of the photos of his rustic house in New Hampshire where he lived with his elderly mother. He looked creepy too at the time, and the prospect of this guy replacing William Brennan was terrifying. But as happens to many justices not named "Scalia", "Thomas", "Roberts" or "Alito", once on the Court, his opinions became somewhat unpredictable. As Republican-appointed justices go, he really hasn't been too bad.

The Court has been, or should have been, a major issue in the last three elections. Perhaps because it's been a long time since a major decision that significantly affected most people's lives came down from the bench, far too many people thought about what it means when an ideological president chooses staunch ideologues like the two doctinal wingnuts appointed by George W. Bush. I can remember seeing video clips of college girls blithely saying, "Oh they'll NEVER make abortion illegal again." That was the point at which I seriously considered just saying "Oh, the hell with it," except that then there were other issues like wiretapping and Miranda and voting rights other cornerstones of Americans' right to be left alone by their government and treated fairly by the system that a Bush (or McCain/Palin) Court would gleefully dismantle and still have room for dessert.

It's going to be interesting to watch the Republicans blather about "legislating from the bench" as they demand a justice in the mold of Sammy the Stem Cell Alito, which the President made clear the other night they're not going to get:

I do think that, to my Republican friends, I want them to realize that me reaching out to them has been genuine. I can’t sort of define bipartisanship as simply being willing to accept certain theories of theirs that we tried for eight years and didn’t work and the American people voted to change. But there are a whole host of areas where we can work together.

And I’ve said this to people like Mitch McConnell. I said, look, on health care reform, you may not agree with me that we should have a public plan — that may be philosophically just too much for you to swallow. On the other hand, there are some areas, like reducing the cost of medical malpractice insurance where you do agree with me. If I’m taking some of your ideas — and giving you credit for good ideas — the fact that you didn’t get a hundred percent can’t be a reason every single time to oppose my position. And if that is how bipartisanship is defined — a situation in which, basically, wherever there are philosophical differences I have to simply go along with ideas that have been rejected by the American people in a historic election, we’re probably not going to make progress.

I fully expect Obama to appoint a cautious, centrist justice in the mold of Stephen Breyer, and while the Republicans will blather and throw fits and get their knickers in a twist, there won't be much they can do to block whoever the nominee may be. And if they somehow manage to block, I think Obama will keep sending up names until they stop, rather than capitulate to the kind of police state theocrat that the Republican base wants.

Labels: Supreme Court

Justice Ruth Bader Ginsburg has pancreatic cancer:

Ginsburg, 75, has been a justice since 1993. She has been increasingly vocal in recent years about the court's more conservative stances, especially after the appointments made by President George W. Bush.

Pancreatic cancer is often deadly, although the court said doctors apparently found Ginsburg's growth at an early stage.

In 1999, she had colon cancer surgery, underwent radiation and chemotherapy, and never missed a day on the bench. Statistics suggest this could be a tougher fight.

Ginsburg underwent the surgery at the Memorial Sloan-Kettering Cancer Center in New York. She will remain in the hospital for seven to 10 days, said her surgeon, Dr. Murray Brennan, according to the court. The justices hold their next private conference on Feb. 20 and return to the bench from their winter break on Feb. 23.

President Barack Obama expressed hope for her speedy recovery, White House press secretary Robert Gibbs said Thursday, and offered his thoughts and prayers.

And so do we. Justice Ginsburg is one of only four remaining justices with a heart and a soul. We wish her a full recovery, but this should be a reminder that this is one reason why elections are important.

Labels: Supreme Court

Today over at BradBlog, I weigh in on the Supreme Court's refusal to hear only one of the various Lawsuits by Lunatics challenging Barack Obama's citizenship.

Labels: Clarence Thomas, Supreme Court

Here we go again.....For the third time, the Supreme Court has ruled that foreign detainees at Guantanamo Bay have the right to challenge their detention in civilian courts in the U.S., and that they have been denied their right to habeas corpus, and all that silly stuff that the Bush administration would have us believe is less important than our "safety."

The 270 men held at Guantanamo as suspected enemy combatants have been in limbo, some for over 6 years, as the lack of due process, evidence, and justification for their imprisonment, has created a smokescreen preventing any realistic procedure or outcome. Many of these men have been tortured, and since the evidence gained by such treatment is not reliable, its been impossible for a full case to be made without the issues becoming bigger than the particular case trying to be heard.. But really, according to first hand accounts of the treatment of prisoners at Guantanamo have left many of them in such states as to make it hard to release them to their home countries, much less any other country that might agree to take them. The longer this goes on, the more we look like the bad guys, (too late,) and if there ever was a case to be made, we have lost it completely ethically and morally, and we have lost the ability to punish the guilty in any reasonable way.

The emotional and physical fallout from this sort of imprisonment and torture will leave lasting effects that should not be underestimated. I guess that John McCain could be cited as an example of a POW who emerged seemingly unscathed from his ordeal, but then the stories of his vicious temper and his vile treatment of those around him, as cited by Cliff Schecter in his excellent book, The Real McCain, coupled with his seeming disconnect with reality and always changing beliefs and opinions, leads one to think that he is still deeply effected by PTSD, and driven by some deep anger to wage more and more war and to get some sort of revenge. Surely some of the detainees could walk among us with little sign of where they've been; like McCain, they will be time bombs ready to explode at any time.

Without due process, its been impossible to classify these prisoners as true "illegal enemy combatants." With no clear classification and with the republican led congress blocking the last 2 SCOTUS rulings on this by passing laws and limiting judicial oversight, a ripple effect has caused any cases that have made it to a court or tribunal to be sent back to lower courts to sort out the legalities. So, how can we know if this new decision will amount to anything at all before the next administration takes office? Since the designation of the detainees is decided by the president himself and his top cabinet, and is very confidential, its impossible to know what it is based on. Add to that the fear that hovers around the disinformation and/or PR campaign that has painted these prisoners as criminals, terrorists, and enemy combatants, and it's unlikely that they will ever see the light of day in any meaningful way. Its also unlikely that justice will be done or that any deterrence that might be fostered by America's ability to kick the collective asses of the bad-guys, will be evident at all.

America, as it stands, appears to be run by a bunch of heartless, bungling, idiots, with an administration that doesn't even follow our own laws or the rulings of our own court. If they don't like the rulings of the highest court in the country, they just go about circumventing them. With this kind of leadership and the track record of the last 7 years, we have no way ever again to claim the moral high-ground, or to claim that spreading our brand of freedom or democracy is superior to the individual evolution of any country.

The really troubling part of this mess is that the dissenting members of the court, being the usual suspects, joined Alito's written dissent which assumed the guilt of the prisoners and stated a political opinion about the danger that America is in (with the implication being that these prisoners who have not been charged or tried are the reason,) as noted in the Washington Post:

Justice Antonin Scalia took the unusual step of summarizing his dissent from the bench, calling the court's decision a "self-invited . . . incursion into military affairs," and was even stronger in a written dissent joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.

"America is at war with radical Islamists," Scalia wrote, adding that the decision "will almost certainly cause more Americans to be killed."

I thought that the court was in place to ensure the sanctity of American laws and the way that we do things. If the reason why Scalia dissents as he does, (joined by certain of his colleagues,) is that he feels that these prisoners are, in fact, enemy combatants, with no evidence or due process stating such, or even alleging it, then he is stating mere opinion based on gut feelings and stories drawn out of tortured prisoners who have likely not seen the light of day or another human being, except their torturers, for months. Our justice system doesn't work this way and the highest court is not supposed to issue dissents or opinions based on personal feelings about issues that are clearly political, (and unproven, at that!)

I don't believe that the court's job is to tell us that their decision is based on the danger that America is in if certain prisoners happen to be what one or another of them thinks they may be. I believe that they are supposed to comment on whether the information presented and the treatment of those prisoners follows the LAW! isn't the Supreme court the last stop in decision making and a place where the information and evidence is looked at as already revealed and consideration is given to process? If not, then I would like to see where new evidence...real evidence...was introduced that might indicate that these people are combatants of any kind. If not, and if this is purely an oversight of law decisions, then why is the dissent written in terms of political opinion regarding the safety of Americans? The laws of our country are not in place so that we can cringe behind them, but rather so that we can stand boldly and die to protect them...right? This is just more of the Karl Rovian "Be Very Afraid" brand of fear-politics.

We can guess that these prisoners are bad guys. We can know that they are hardened and hateful, and even that some of them have been driven crazy. We can also guess that they come from a place where bad guys hide out, and we can go with the gut feelings of military interrogators that has filtered down through layers and layers of pundits, informers, and gossips, but unless these guys stand before an open court with independent lawyers, we've got nothing.

The fucking Bush Administration, in person as it turns out, have made the world incredibly less safe by not following the law as it stood. If they hadn't had a field trip to Guantanamo to witness actual interrogation techniques and take it upon themselves to shape a policy that has pieces of the TV show 24, and techniques that have been proven to not work within it, then we might have been able to prove if these guys are criminals or not; we wouldn't have to have them walking free among us if they are guilty. But I think that this whole thing really wasn't about combatants, or safety, or the law; it was about being macho and showing the world that they can change and defy American law anytime they want. That probably buys some sorta tough street cred in the higher echelons of power where the real dealing is done, just for the rush of the huge chess game that is Planet Earth.

So, forgive me if I am not counting my prisoners before they get their hearings. An administration that bends the law wherever they see fit, and a senate with Joe Lieberman leaning to the right, and that slim of a majority, will stand in the way of this too. Soon it will Be Obama's problem, and a mark on his record that he had this horrible war and had to house these poor guys forever because they had nowhere to go....I like to see as much of this as possible get on the record, but honestly, unless we impeach Bush and Cheney (and indict Gonzalez and Rumsfeld, and do something to Condi Rice, which I haven't figured out yet,) we've got nothing.

...except other secret prisons around the world, most notably in Afghanistan, that are doing the same thing, but reportedly worse....

c/p RIPCoco

Labels: guantanamo, John McCain, Supreme Court, torture

The coverage last night of Chief Justice John Roberts' hospitalization for what is being described as a "benign idiopathic seizure" questioned the almost instantaneous reassurance that "he has fully recovered from the incident." Any time there is a brain incident like this, quick and facile diagnoses, absent a history of epilepsy, are usually not standard practice.

Because we are not a "hate site", contrary to what most wingnuts may believe, we hope for Roberts to make a full recovery. He is, after all, a relatively young man with young children. Unlike the mouthbreathers on the right, our compassion isn't contingent on liking what he does or his ideology.

Roberts had a similar incident in 1993 and has not had a recurrence since. Interestingly, a Google search on "benign idiopathic seizure" reveals nothing that occurs in adulthood. There is, however, an idiopathic generalized epilepsy of adult onset, which has a genetic component.

If in fact Roberts does have a form of adult onset epilepsy, this is still not a cause for excessive concern and should not result in talk of his resignation, particularly if Arlen Specter is truthful that the Senate Judiciary Committee knew of the 1993 incident and didn't find it important. Epilepsy is treatable with medication, and one would hope that we have progressed beyond the stigma that the syndrome used to carry with it.

If the Roberts incident causes the composition of the Supreme Court to finally become a presidential campaign issue, particularly with a third of Americans now believing that the Court is "too conservative", up from 19% in 2005, that would not be the worst thing in the world. Rudy Giuliani has already said he would appoing "strict constructionist" justices, which is code for "extremely reactionary" in the mold of Samuel Alito. The Roberts court has made clear that it favors corporations over citizens and government control over individual rights. Concerns about the Court extend far beyond Roe. Assuming that Roberts is not seriously ill, shining a spotlight on this Court is a positive development.

Labels: JOhn Roberts, Supreme Court

As the concentration of American wealth continues to filter upwards towards those who need it least and away from those who need it most, the Supreme Court is falling right into line.

Last week the Court made it next-to-impossible to sue for pay discrimination, saying, in essence, that if you don't break into the HR offices and find out everyone's pay rate within 180 days, you are out of luck.

Then yesterday, in a double-whammy to American workers, the Court decided that companies faced with viable alternatives to terminating their pension plans don't have to even consider them and in one of the most appalling decisions in recent memory, decided that low-wage home health care workers are not only not entitled to overtime, they aren't even entitled to the minimum wage! That it was Stephen Breyer who wrote the majority opinion just makes it worse.

Home health care is one of the worst-paid jobs in the country. The work is difficult, stressful -- and vital. The companies that place these workers rake in huge hourly fees, and the actual worker sees little of it. This is solely about cost containment for state Medicaid expenses and the profits of insurance companies that might cover such care -- and the hell with the mostly female, mostly minority home health care workforce.

With more people being forced into low-paid service jobs because of a declining job base in other higher-paying fields, the notion that people who care for our most vulnerable citizens aren't entitled to a living wage is appalling -- and flies in the face of the American Dream to which most of these very women working for peanuts aspire.

Labels: greed, Supreme Court