Tuesday, June 30, 2009

Oklahoma Lawmaker Introduces Proclamation That Blames "Debauchery" in the United States for Sinking the Economy

A prior blog entry on Dissenting Justice explains Rush Limbaugh's effort to link South Carolina Governor Mark Sanford's international adulterous relationship with his frustration over President Obama's economic policies. Just in case people did not find Limbaugh's "thinking" on this issue compelling or entertaining enough, Oklahoma Representative Sally Kern has raised the stakes. Thanks to Jonathan Turley for this story.

Kern recently went on a verbal rampage against gays and lesbians in which she argued that "homosexuality" is a "bigger threat" to the nation than "terrorism." Now, Kern has expanded her moralistic net by introducing a proclamation in the Oklahoma legislature that links the slumping economy with acts of debauchery, which include "abortion, pornography, same sex marriage, sex trafficking, divorce, illegitimate births, [and] child abuse."

Remaining true to her anti-gay roots, Kern is particularly upset that Obama recognized Gay Pride month. The draft proclamation states that the legislature is "deeply disturbed that the Office of the president of these United States disregards the biblical admonitions to live clean and pure lives by proclaiming an entire month to an immoral behavior. . . ."

Kern's proclamation echoes intriguing comments that Newt Gingrich recently made, which link contemporary America with paganism: "I think this is one of the most critical moments in American history. . .We are living in a period where we are surrounded by paganism." At the same event, Mike Huckabee stated that: "I am not a citizen of the world . . . I am a citizen of the United States because only in the United States does citizenship start with our creator."

The draft proclamation concludes with a series of resolutions that urge citizens of Oklahoma and the United States to "repent" and adhere to the Bible. Another passage pleads with God to go easy on the United States for its sins:
NOW THEREFORE, BE IT RESOLVED that we the undersigned elected officials of the people of Oklahoma, religious leaders and citizens of the State of Oklahoma, appealing to the Supreme Judge of the world, solemnly declare that the HOPE of the great State of Oklahoma and of these United States, rests upon the Principles of Religion and Morality as put forth in the HOLY BIBLE; and

BE IT RESOLVED that we, the undersigned, believers in the One True God and His only Son, call upon all to join with us in recognizing that “Blessed is the Nation whose God is the Lord,” and humbly implore all who love Truth and Virtue to live above reproach in the sight of God and man with a firm reliance on the leadership and protection of Almighty God; and

BE IT RESOLVED that we, the undersigned, humbly call upon Holy God, our Creator, Sustainer, and Redeemer, to have mercy on this nation, to stay His hand of judgment, and grant a national awakening of righteousness and Christian renewal as we repent of our great sin.
Very interesting -- o.k. -- I mean "scary." I believe I saw some fire and brimstone flare up outside just from reading this stuff!

Just for fun, I have posted Kern's recorded warning about the destructive nature of "homosexuality." Enjoy.

Dissenting Justice on the DOMA Brief, Part II: The Legal Arguments

Yesterday, President Obama hosted members of GLBT rights organizations at the White House. Formally, the meeting commemorated "LGBT Pride Month." Underneath the surface, however, the meeting served a different purpose. Obama convened the gathering in order to alleviate growing anxiety among GLBT organizations concerning his commitment to gay rights.

Although Obama promised to seek the repeal of the Defense of Marriage Act (DOMA) and Don't Ask, Don't Tell, the military continues to discharge personnel based solely on sexual orientation, and the Department of Justice recently filed a brief that defends the constitutionality of DOMA. The government's defense of DOMA led to stinging criticism of President Obama by many prominent GLBT rights advocates.

[Note: A previous blog entry on Dissenting Justice analyzes the political rifts the brief caused. This essay and a subsequent one examine the legal content of the brief.]

DOMA 101
DOMA contains two major provisions. One section of the statute declares that states do not have to recognize same-sex marriages that other states consider legitimate. This part of the law purports to authorize states not to extend "full faith and credit" to same-sex marriages.

The other important section of DOMA adopts a heterosexual definition of "marriage" for federal programs. This part of the law denies same-sex couples any benefit (or obligation) that federal law extends to married couples, such as health care, joint-tax filing, etc.

The Brief
The government's brief argues that DOMA is constitutional in all respects. Surprisingly, the full faith and credit arguments have received the heaviest criticism -- even though this particular part of the statute is not really the most damaging to same-sex married couples. In the absence of DOMA, states that disapprove of same-sex marriage would probably still decline to recognize these marriages, which would lead to the same type of litigation that DOMA has already caused. Furthermore, it is likely that the Supreme Court -- not Congress -- will probably have the final say on what the Full Faith and Credit Clause requires of states in this setting.

The denial of federal benefits, however, is solely within the control of the federal government. According to the President's own previous statements, DOMA denies over 1,100 benefits to same-sex married couples. Even if individual states recognize same-sex marriages, DOMA still makes those marriages meaningless for purposes of federal law.

Standard Full Faith and Credit Analysis or Equating Same-Sex Marriage and Incest?
The Constitution requires states to give "Full Faith and Credit. . .to the public Acts, Records, and judicial Proceedings of every other State. . . ." Based largely on the Full Faith and Credit Clause, states traditionally have recognized marriages performed in other states.

The government's principal argument in defense of DOMA's full faith and credit provision contends that courts have allowed states to deny recognition of marriages from other states that violate their own "public policy." The relevance of the public policy exception to same-sex marriage has received an enormous amount of attention from legal scholars. Furthermore, the government's discussion of the exception represents a fairly routine way of analyzing the legal issues presented by the Full Faith and Credit Clause.

Despite its unexceptional nature, this section of the brief has inflamed many GLBT advocates because the Department of Justice cites to a series of cases that apply the public policy exception and allow states to deny recognition of certain marriages. These cases include an incestuous marriage between an uncle and his niece, a marriage involving a 16-year-old, and a marriage between first cousins.

John Aravosis at Americablog wrote a very critical analysis of this part of the brief which makes the following observations: "Holy cow. Obama invoked incest and people marrying children. . . .Then in the next paragraph, they argue that the incest and child rape cases therefore make DOMA constitutional. . . ."

These arguments, however, severely misrepresent the content of the brief. Certainly, the precedent deal with incest and age requirements for marriage, but these cases merely support the proposition that states can object to marriages that contravene their own public policy. They do not, however, turn on the general morality or desirability of the particular marriages, which were in fact legal in the "home" states. Instead, the cases conclude that where a public policy conflict exists, states can deny recognition without violating the Constitution. Finally, the brief never equates same-sex marriage with incest or "child rape" -- neither explicitly or implicitly.

These cases do not necessarily justify the nonrecognition of same-sex marriage by states, but they also do not substantiate the deepest public criticism of the brief by GLBT advocates -- that the Department of Justice brief compares same-sex marriage to incest and child rape. This argument is simply wrong.

Other scholars who advocate GLBT rights have taken a similar view. Nan Hunter, a law professor at Georgetown University Law Center and a longterm proponent of GLBT rights, describes the arguments by Aravosis and many other critics as "irresponsible attacks." Also, Chris Geidner, author of Law Dork, wrote an extensive essay that responds to the distortions Aravosis made and continues to make.

I enjoy reading Americablog, and have previously cited to it. I abhor and have criticized the homophobic linkage of same-sex marriage with incest and pedophilia. I was also one of the first bloggers to question Obama's commitment to GLBT rights, which I continue to do. Nevertheless, the DOMA brief, though awful in many respects, does not equate same-sex marriage with incest or child molestation.

Concluding Thoughts
Although many pro-GLBT advocates have unfairly criticized the Obama administration's defense of DOMA's full faith and credit provision, they are generally correct in condemning the government's argument that DOMA does not deny equal protection to same-sex married couples. In fact, if courts accept the equal protection analysis in the DOMA brief, this would represent a major setback for GLBT rights and would have negative implications beyond DOMA.

Accordingly, the Obama administration's equal protection position absolutely conflicts with his campaign promises -- although during yesterday's meeting, he downplayed any inherent conflict between his defense of DOMA and his "commitment to reversing this law." Obama's words, however, do not stand up to honest scrutiny. Alas, in the interest of space and time, I must defer my analysis of the equal protection arguments to another day. Stay tuned.

Monday, June 29, 2009

Surprise, Surprise: Supreme Court Reverses Ricci in 5-4 Ruling Written by Justice Kennedy

As I predicted, the Supreme Court reversed the Second Circuit ruling with a 5-4 decision authored by Justice Kennedy.

Here is my prior analysis of the case: WWKD: Ricci v. DeStefano Will Likely Turn on Justice Kennedy.

The SCOTUS blog has a good analysis of the the judicial politics surrounding the ruling: What Ricci says about the Supreme Court’s views of Judge Sotomayor SCOTUSblog.

What The Decision Means Politically
It is difficult to disagree with the White House statement (and the SCOTUS analysis), which says that the opinion proves that Judge Sotomayor is not biased.

As I stated in my prior analysis, even with the 5-4 reversal, 12 judges have voted against the firefighters, while 11 voted for them. This definitely shows that the issue was unsettled and that Second Circuit ruling was within the mainstream of legal thought (on a highly divisive issue).

I suspect that her opponents, however, will not let it go. Despite the fact that 11 other judges, including 4 who sit on the Supreme Court, have ruled the same way, they will still make noise about the ruling proving that she is unqualified for the Supreme Court. Ultimately, their complaints will have no effect.

Saturday, June 27, 2009

Indefinite Detention By Executive Order: Another Looming Disappointment for the Left?

In many essays on this blog, I have analyzed national security policies of the Obama administration that conflict with Obama's campaign promises. In most instances, these policies also replicate practices of the Bush administration that received vehement condemnation from the Left. One of those policies involves the practice of indefinite detention.

Bush's practice of detaining individuals without charges or a trial received passionate criticism from the Left. Obama also condemned this practice during his presidential campaign. But after Obama became president, members of his administration soon indicated that he would not stray too far from Bush on this issue.

Kinder, Gentler Indefinite Detention Is Still Unlawful
Recently, Obama himself confirmed that his administration would detain some suspected terrorists without prosecuting them in federal courts or in a military tribunal. Obama described the individuals as persons who "cannot be prosecuted for past crimes. . .but who nonetheless pose a threat to the security of the United States." Obama, however, stated that he would collaborate with Congress to create a system that utilized judicial and Congressional oversight, required periodic review, and that did not depend upon the will of one person:
We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. . . .

In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
Although Obama's statement suggests a strong commitment to the rule of law, his argument that the United States can simply detain people who have not committed a criminal act is an anathema to the notion of due process. And simply saying that the detention will prevent them from "carrying out an act of war" does not prove that they ever engaged in or will engage in warfare against the United States. Certainly, many law enforcement officers would like the authority to detain individuals they believe might one day possibly commit some crime. Due process, however, does not allow this to occur.

Furthermore, Bush's practice of indefinite detention rightfully outraged liberals. Obama's stance is equally outrageous, however, and after initial reluctance, many progressive supporters of Obama have finally started criticizing the president's national security policies.

Nuance: Working With Congress Does Not Mean Passing Legislation
Recent reports indicate that Obama might claim detention authority by executive order -- rather than purusing authorization by statute. Sources within the Obama administration, however, say that using an executive order to outline detention policy would not betray the president's promise to "work with Congress to develop an appropriate legal regime." According to the New York Times, these officials explain that: "[W]orking with Congress [does] not necessarily mean passing legislation. . .[and that] Obama. . .would consult with lawmakers even if he decided to enact his system through executive order."

But implementing a detention policy by executive order alone would affirm Bush's assertion that the president has the power of indefinite detention. Earlier this year, the Obama administration strained to distinguish its own stance on this issue from Bush's by stating that the president would detain individuals pursuant to legislation authorizing the war against Al Qaeda and the international law of war. As I previously argued, however, the notion that this "shift" significantly retreats from the Bush administration's practices is vastly overstated (if not completely wrong). Although reports suggest the Obama administration might utilize an executive order to avoid wrangling with Congress over the details, this would tacitly admit that the president does not need authorization from Congress, and it would also replicate Bush's view of strong executive power in this setting.

* For excellent coverage of this issue, see Glenn Greenwald's column on Salon.com.

* TalkLeft has also addressed the issue: Obama Considering Unconstitutional Imposition Of Preventive Detention Policy

* For prior articles related to indefinite detention on Dissenting Justice, see:

Obama on National Security: I Am Doing the Right Things; I Have Not Broken Campaign Promises

When Will Obama Close the Guantanamo Bay Prison?

Et Tu, Olbermann? Some Liberals Finally Realize That for Certain Issues, "Change" Actually Means "More of the Same"

Change Alert: Indefinite Detention in the USA -- Not Guantanamo Bay

So Exactly When Does "Change" Begin, Take 45345234524523452452: Elena Kagan Says Government Can Indefinitely Detain Terrorism Suspects

National Center for Lesbian Rights, Lambda Legal, and ACLU File Briefs in Same-Sex Marriage Case

Famed litigators David Boies and Ted Olson recently filed a lawsuit in federal court on behalf of California residents. The suit asserts that California Proposition 8, which bans same-sex marriage, violates the constitution. On Thursday, the National Center for Lesbian Rights, Lambda Legal and the ACLU filed a brief supporting the plaintiffs' argument that the law is unconstitutional.

Many GLBT rights groups oppose the litigation on the grounds that federal courts are not the best venue to decide this issue, given the current composition of the Supreme Court, the undeveloped status of federal court case law related to sexual orientation discrimination, the strong public opposition to same-sex marriage, and the weak status of sexual orientation within federal antidiscrimination law.

Because of the risks associated in the federal courts, many GLBT advocates prefer using state courts and legislatures to accomplish change in this area. Indeed, before the Supreme Court gets this case (if at all), voters in California might have already repealed Proposition 8, which would make the case "moot."

Despite their own opposition to the federal litigation strategy, these three leading GLBT groups filed a brief in support of the plaintiffs because they have accepted the inevitable nature of the suit. Matt Coles, an attorney for the ACLU, explained the difficulties raised by the suit: "Just because something is unjust doesn't mean you'll automatically get a court order. . . .You have to lay the legal and political groundwork." The groups, nevertheless, reluctantly filed supporting arguments.

Friday, June 26, 2009

Rush Limbaugh: Obama Caused Sanford's Affair With His "Concubine"

I usually do not keep up with or make hay out of the Rush Limbaugh's numerous ludicrous antics. I even defended Limbaugh earlier this year when, instead of focusing on the economy, Democrats and the media began a campaign to make him the symbolic face of the Republican Party.

Limbaugh's latest madness, however, proves that his show exists somewhere in a dark corner of the Twilight Zone. Commenting on South Carolina Governor Mark Sanford's recent disappearance and sordid affair, Limbaugh said that upon hearing the news, he immediately thought that Sanford's behavior resulted from his frustration over the stimulus package and other policies of the Obama administration. Limbaugh said that Sanford's excursion to visit his "concubine" proves that he had decided to "enjoy life" because the "Democrats are destroying the country." Kudos to Media Matters for uncovering the story.

Question: Because Sanford's affair apparently began nearly a year ago, does this mean that it is really President Bush's fault?

Thursday, June 25, 2009

Michael Jackson, Farrah Fawcett -- Died Today

Wow. This is dark day for children of the 70s. Michael Jackson, one of the greatest entertainers of all-time, died today at age 50. Farrah Fawcett, the beloved "angel" from Charlie's Angels and television movies also died today at age 62. Fawcett died from complications related to cancer. It is unclear what caused Jackson's death.

Favorite Jackson Album: Off the Wall
Favorite Fawcett Appearance: Charlie's Angels

Justice Thomas: A Little Empathy Please!

Today, the Supreme Court ruled 8-1 that school officials in Safford, Arizona violated the constitutional rights of Savana Redding when they subjected her to a strip search. School officials, acting on a tip from another student, suspected that Savana (who was then 13-years-old) possessed a prescription equivalent of two Advil tablets. School policy prohibited students from possessing any prescription or over-the-counter medication without prior consent.

School officials first searched Savana's backpack, but they found no evidence of drugs. Next,
[They] asked Savana to remove her jacket, socks, and shoes, leaving her in stretchpants and a T-shirt. . .which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.
Savana's mother sued the school district, arguing that the search violated Savana's Fourth Amendment right against "unreasonable searches and seizures." The Supreme Court agreed.

The Court, however, held 7-2 that school officials did not infringe a "clearly established" right. This part of the ruling immunizes school officials from a damage award. Justice Stevens and Justice Ginsburg dissented on the immunity issue.

Justice Thomas: Pathetically Unempathetic
Justice Thomas agreed with the immunity ruling, but he supplied the lone dissent to the Court's conclusion that the search violated the Constitution. In his dissent, Thomas robotically states that: "Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment."

This argument, however, distorts the substance of the Court's ruling. The Court did not "second guess" school officials. Instead, it enforced the constitutional rights of students -- rights held by "all persons" against state intrusion. Thomas's description of the Court's important role in the protection of individual liberty as the annoying micromanagement of school administrators shows a great disrespect for the Constitution and the Court.

Thomas's dissent is even more troubling when one considers that he and six other justices concluded that the school officials did not violate a "clearly established" right when they conducted the search. Generally, government officials are immune from damages unless their behavior violates a right that was "sufficiently clear" in preexisting law. The Court concluded that the diversity of judicial opinions on the legality of strip searches in the lower courts counsels against a finding that the right was clearly established at the time of the search.

This portion of the ruling proves the often ignored or misunderstood fact that constitutional law is not always clear and precise and that the facts and precedent related to a particular case will not always compel a single outcome. As the majority states, there are "numerous" "well reasoned majority and dissenting opinions" that reach a different conclusion on strip searches than the Supreme Court.

These divergent outcomes arise because the law in this area applies a flexible standard. Under this standard, a search is "permissible. . . when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. . . ." Reasonable judges, however, can reach different conclusions about the "reasonableness" or "excessiveness" of a search.

Because the relevant standard supports multiple, logical outcomes, then empathy could influence a judge's decision without making the ruling an unreasonable or improper statement of "the" law. In fact, the test used in this area calls explicitly for empathy. It forces judges to determine whether a search was too intrusive in light of the student's "age and sex."

Accordingly, the majority considered Savana's subjective reaction to the search and held that: "Savana’s subjective expectation of privacy against [the] search is inherent in her account of it as embarrassing, frightening, and humiliating." In other words, the Supreme Court found a Fourth Amendment violation in part because it recognized and took into consideration Savana's emotional response to the search. The Court's ruling, therefore, rests explicitly on judicial consideration of Savana's feelings, emotions and her perceived vulnerability during the search. This part of the ruling displays the type of empathy that President Obama says he seeks in a Supreme Court justice, and 8 justices, including four of the conservatives, subscribed to it.

In addition to considering Savana's reaction to the search, the Court also discusses the emotional impact of strip searches upon adolescents in general. Citing to psychological literature for support, the Court finds that:
Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be. . . .
If this is true, then, given the flexibility of the relevant test, Thomas could (and should) have shown empathy for Savana. Instead, Thomas has written an opinion that trivializes individual liberty and defends the interests of school officials who were apparently so exercised over the possible presence of Ibuprofen at the school that they forced a young girl to display her breasts and pelvic area to gazing and searching adults.

Wednesday, June 24, 2009

For Socially Conservative Gov. Sanford, Marriage Consists of a Man, a Woman, and a Woman on the Side

South Carolina Governor Mark Sanford is a traditional, socially conservative, family-values kind of guy. He opposes same-sex marriage and civil unions for gays and lesbians. He also voted to ban adoptions in the District of Columbia by gays and lesbians and any other individuals who are unrelated by blood or marriage. Sanford's own life, however, has been a lot more nuanced.

Although Sanford rejects the legitimacy of same-sex marriage and gay adoption, I suspect he will not voluntarily hand over his own marriage license despite jetting to Argentina in order to engage in a notorious international affair and after hiding from his wife and four children for nearly a week.

Yet again, "Family Values" = "Do as I say, not as I do."

See also:

Major Update in Missing Governor Case: Sanford Says He Was in Argentina -- Not Hiking on Appalachian Trail

New Twist in South Carolina Governor Drama: Sources Claim Feds Found Sanford Boarding a Plane in Atlanta -- Not Hiking in the Appalachian Trail

Did South Carolina Governor Disappear for Nude Hiking Trip?

Major Update in Missing Governor Case: Sanford Says He Was in Argentina -- Not Hiking on Appalachian Trail

Yet another update (see below).

This case just gets more and more bizarre by the day. Earlier this week, staffers for South Carolina Governor Mark Sanford, who has been missing in action since late last week, insisted that he was happily hiking in the Appalachian Trail. Today, however, Sanford has returned to the Palmetto State, and he has a very different story. Sanford says that he was not hiking since last Thursday, but that he was enjoying a week-long hiatus in Argentina -- alone. High drama -- and deceit, the usual combination. Stay tuned.

Yet Another Major Update: Yup -- It was an affair.

See also:

New Twist in South Carolina Governor Drama: Sources Claim Feds Found Sanford Boarding a Plane in Atlanta -- Not Hiking in the Appalachian Trail

Did South Carolina Governor Disappear for Nude Hiking Trip?

Republicans' Latest "New" Strategy on Sotomayor Is Another Loser

After initially describing Judge Sonia Sotomayor as a racist, intellectual lightweight, and a judicial fireball, Republicans have struggled to find a consistent and workable strategy to oppose her without causing serious political damage to the GOP. Opinion polls continue to show that a majority of the public supports Sotomayor's nomination to the Supreme Court. More ominously for Republicans, polls also find that Latinos overwhelmingly support Sotomayor's prospective appointment.

Moreover, assuming the accuracy of a recent Daily Kos/Research 2000 poll, Latino support for the GOP has declined from an already abysmal level since conservatives began attacking Sotomayor. The poll indicates that only blacks have a lower opinion of the Republican Party than Latinos. Just 3% of blacks and 8% of Latinos view the party favorably, while 31% of whites hold a favorable opinion of the GOP. If the situation does not improve for Republicans, Obama will win the presidency again, and Congressional Democrats will perform well in midterm elections.

The Republicans' Evolving "Sonia Strategy"
Because the Republicans' early attacks on Sotomayor failed, they have repeatedly attempted to retool their approaches. For example, Senate Republicans have distanced themselves from statements by conservatives, like Rush Limbaugh and Newt Gingrich, which described Sotomayor as a racist. Some of them have also described personal meetings with Sotomayor in positive terms. Furthermore, several Senate Republicans have emphasized the need to scrutinize her judicial record, rather than focusing on snippets of text from speeches she has delivered.

Now, with Sotomayor's confirmation hearings scheduled to begin on July 13, Republicans have possibly finalized their strategy. According to the Associated Press, Republicans will question Sotomayor regarding her "commitment" to the Second Amendment, property rights, and equal protection. While a focus on legal issues would represent an improvement over earlier discourse surrounding Sotomayor, this tactic will likely fail to raise any serious questions regarding Sotomayor's fitness for the Supreme Court or any major political opposition to her nomination.

Sotomayor's Judicial Record Does Not Warrant Opposition to Her Nomination
The new Republican strategy will likely fail because Sotomayor's judicial record does not warrant opposition to her nomination. Sotomayor has served as a federal judge without controversy for fifteen years. If she were an incompetent ideologue who did not care about the Constitution, a public record documenting this narrative would already exist. Accordingly, Republicans will have to make strained arguments as they try to raise questions about Sotomayor's commitment to the Constitution (which is an ambiguous concept).

Furthermore, the specific issues that Republicans have isolated as potentially raising questions about Sotomayor (the right to bear arms, property rights, and equal protection) do not present any real problems when viewed with intellectual honesty and nonpartisanship.

Specific Issue: Right to Bear Arms
Conservatives have already attempted to portray Sotomayor as a judge who does not respect the right to bear arms. They specifically cite an opinion issued by a 3-judge panel of the Second Circuit (Sotomayor sat on the panel) which concludes that the Second Amendment does not create an "individual" right to bear arms, but that it empowers "states" to establish militias. Although conservatives and pro-gun organizations and individuals oppose this conclusion, legal historians, judges, and legal scholars have debated this specific question for over a century.

Last year, the Supreme Court finally resolved this debate with its ruling in District of Columbia v. Heller. In a very divided, 5-4 opinion, the Court found that the Second Amendment creates an "individual" (rather than a "state") right. Nevertheless, the fact that four sitting justices on the Supreme Court reached the same conclusion as the Second Circuit panel means that Sotomayor's acceptance of the state right position cannot make her unfit for a position on the Supreme Court.

Subsequent to the Heller decision, another 3-judge panel of the Second Circuit, which included Sotomayor, held that the Second Amendment only constrains the federal government, not state governments, and that outside of the Second Amendment, the Constitution does not secure a "fundamental right" to bear arms. Conservatives have engaged in extreme distortion and hypocrisy in their critiques of this ruling.

It is abundantly clear that the specific liberty interests contained in the Bill of Rights were created to limit the federal government -- not the states. This has been the uninterrupted doctrine of the Supreme Court since the 1833 ruling in Barron v. Baltimore. Also, the text of the Bill of Rights supports this conclusion. The First Amendment, for example, explicitly prohibits "Congress" (not the states) from impairing freedom of speech and religion. Furthermore, the Bill of Rights was proposed and ratified because anti-federalists feared that the proposed Constitution, which would significantly expand federal power, would permit the national government to abuse individual liberty. The Bill of Rights served as a political compromise designed to secure ratification of the Constitution in light of strong dissent in several states.

Despite this clear history -- and conservative rhetoric about the virtues of following original intent -- Sotomayor's opponents have criticized her for agreeing that the Second Amendment only constrains the national government. The Supreme Court has, on a case by case basis, concluded that many of the rights contained in the Bill of Rights are "incorporated" by the Due Process Clause of the Fourteenth Amendment -- which makes them enforceable against the states. Neither the text nor the history surrounding the Fourteenth Amendment, however, supports this conclusion. Also, most of the Supreme Court rulings that expanded rights through incorporation were issued by the Warren Court, which many conservatives believe symbolizes the horrors of "liberal" "judicial activism." Nevertheless, conservatives fault Sotomayor for declining to emulate the Warren Court and conclude that the Second Amendment is an incorporated right.

Conservative opposition to the Second Circuit ruling is even more problematic in light of the fact that it strictly follows existing Supreme Court precedent which holds that the Second Amendment is not incorporated. Although this case law is dated, it is still "good law." Finally, a panel of three well respected conservative judges in the Seventh Circuit recently followed the lead of the Second Circuit and refused to hold that the Second Amendment is incorporated. The conservative Seventh Circuit ruling specifically cites the Second Circuit decision that conservatives have sued to brand Sotomayor as a dangerous opponent of gun rights.

Remaining Issues and the "Real Deal"
The other issues that Republicans plan to use in their "Sonia Strategy" have been dissected elsewhere. The constitutional law blog Text and History, for example, offers an erudite two-part analysis that powerfully rebuts conservative efforts to portray Sotomayor as hostile to property rights. Many other blogs, including Dissenting Justice, have addressed Sotomayor's case law and personal opinions regarding race and sex.

Despite the foregoing legal analysis, politics probably explains better than anything else why the Republicans' latest Sonia Strategy will not work. Democrats control the Senate. The public supports Sotomayor. Senate Democrats will support Obama on this issue. Barring any unexpected developments, this case is almost closed.

For an extensive listing of links to commentary regarding Sotomayor on Dissenting Justice, CLICK HERE.

Tuesday, June 23, 2009

Nixon on Abortion: Might Be "Necessary" With a "Black and a White. . .Or a Rape"

The National Archives has released more recordings and transcripts of Richard Nixon's notorious taped conversations in the Oval Office. The National Archives also released thousands of pages of documents from the Nixon White House.

Charlie Savage analyzes the tapes and documents in a New York Times article. The article includes links to the recordings.

The recorded conversations cover many subjects, including Watergate (subpoenaed recordings of those conversations led to Nixon's resignation). Nixon's comments on abortion, however, stand out in Savage's article:
Nixon worried that greater access to abortions would foster “permissiveness,” and said that “it breaks the family.” But he also saw a need for abortion in some cases, such as interracial pregnancies.

“There are times when an abortion is necessary. I know that. When you have a black and a white,” he told an aide, before adding: “Or a rape.”
Nixon's comments leave the impression that he viewed rape and sex between blacks and whites (translation: black men and white women) as moral or factual equivalents.

Notes of a conversation between Nixon and Ronald Reagan (then Governor of California) reveal that Reagan praised the infamous Saturday Night Massacre as “probably the best thing that ever happened — none of them belong where they were. . . ." Ronald Reagan nominated Robert Bork, the only person in the Department of Justice whom Nixon could convince to fire the Independent Prosecutor investigating the Watergate burglary, to the United States Court of Appeals and, subsequently (and unsuccessfully), to the United States Supreme Court.

See: New York Times: Tapes Reveal Nixon’s View of Abortion

New Twist in South Carolina Governor Drama: Sources Claim Feds Found Sanford Boarding a Plane in Atlanta -- Not Hiking in the Appalachian Trail

A previous Dissenting Justice blog entry covered the bizarre story of South Carolina's missing governor Mark Sanford. Until yesterday, Sanford was last detected last Thursday in Atlanta, Georgia. Since that time, he apparently lost all contact with his family (including his wife and children), security detail, and staff.

Late yesterday, however, Sanford's staff said that he was hiking in the Appalachian Trail. But sources for WYFF, an NBC affiliate in Greenville, tell a completely different story. WYFF's sources say that a federal agent located Sanford boarding a plane in Atlanta, not hiking in the Appalachian Trail:
On Tuesday, sources told News 4's Nigel Robertson that a state vehicle is missing and was tracked down, not to the Appalachian Trail, but to the Hartsfield-Jackson Airport in Atlanta.

Sources told Robertson that a federal agent spotted Sanford in the airport boarding a plane. Robertson was told that the governor was not accompanied by security detail.
Once the facts of this bizarre story are confirmed, I suspect that they will either reveal a strange but innocent series of events or they will show that Sanford vanished in order to engage in improper behavior (or perhaps that he was suffering from some mental distress). Until then, stay tuned.

See also:

Major Update in Missing Governor Case: Sanford Says He Was in Argentina -- Not Hiking on Appalachian Trail

Did South Carolina Governor Disappear for Nude Hiking Trip?

Did South Carolina Governor Disappear for Nude Hiking Trip?

The blog world (primarily) has been buzzing over the bizarre "disappearance" of South Carolina Governor Mark Sanford. According to numerous reports, Sanford separated himself from his security detail and family and was last detected in Atlanta on Thursday, June 18. Late yesterday, however, Sanford's office indicated that during his absence, Stanford has been hiking on the Appalachian Trail, but that he would soon return to his duties as governor.

Prior to yesterday's announcement, the news concerning Sanford was sketchy, ominous and undeniably strange. An article in The State, a South Carolina newspaper, contains a summary of the details:
Sanford’s last known location was near Atlanta late last week. A mobile telephone tower there picked up a signal from his phone, according to a source familiar with the situation.

Since then, the governor’s state and personal phones had been turned off, and Sanford had not responded to phone or text messages, a source said. Most mobile phones cannot be tracked if they are turned off.

First lady Jenny Sanford said Monday her husband has been gone for several days over Father’s Day weekend and she did not know where.

She said she was not concerned.

“He was writing something and wanted some space to get away from the kids,” Jenny Sanford told The Associated Press while vacationing with the couple’s four sons at their Sullivan’s Island beach house.
Now that Sanford's office has confirmed that he is hiking in the Appalachian Trail in Georgia, numerous reports are emerging which indicate that a portion of Sanford's hiking trip coincided with "Naked Hiking Day," an annual event that celebrates the Summer Solstice. It is unclear whether Sanford ran full monty through the woods, but media outlets are salivating over the possibility.

The Huffington Post has identified another potentially strange twist to Sanford's disappearance. Earlier this year, Sanford became famous (or infamous) for denouncing and refusing to accept stimulus funds allocated for South Carolina. The state legislature, however, ultimately overruled his decision. Apparently, the Appalachian Trial (along with facilities at many other national parks) will benefit from improvements made with (you guessed it) stimulus money.

See also:

Major Update in Missing Governor Case: Sanford Says He Was in Argentina -- Not Hiking on Appalachian Trail

New Twist in South Carolina Governor Drama: Sources Claim Feds Found Sanford Boarding a Plane in Atlanta -- Not Hiking in the Appalachian Trail

PS: To "regular" readers -- I normally do not write stories of this nature, but the bizarre circumstances surrounding Sanford's disappearance made his case an exceptional one.

Monday, June 22, 2009

The "Political" Supreme Court Avoids Constitutional Question Regarding the Voting Rights Act; Thomas Dissents

History of Voting Rights Act
Enacted in 1965, the Voting Rights Act is the most potent legislative response to voter disenfranchisement in the history of the United States. Although the 15th Amendment prohibits the denial of voting rights on the basis of race, until the 1960s, this constitutional provision went largely unenforced in most of the Southern states. During Reconstruction, President Grant frequently dispatched Union forces to protect blacks from violence at the polls. Even this support, however, could not prevent violence, such as the 1872 Colfax Massacre in Grant Parish, Louisiana. During the Colfax Massacre, 150 blacks were murdered as they attempted to secure the county courthouse from white Democrats who unlawfully claimed control. Until the passage of the Voting Rights Act, blacks in some Southern states could not vote whatsoever, due to racial terrorism and laws such as "poll taxes," which impeded political participation.

The Voting Rights Act forbids policies such a poll taxes that were blatantly designed to evade the 15th Amendment. It also prohibits any election law that systematically denies voting rights to a defined racial group.

Section 5: Preclearance Requirement
Section 5 of the Voting Rights Act requires that certain states that were among the worst infringers of the right to vote must get "preclearance" from the Department of Justice before enacting any changes to their election laws. This rule applies to political subdivisions -- like cities and counties -- within those states as well.

The 15th Amendment authorizes Congress to enforce its terms with "appropriate legislation." Since the passage of the Voting Rights Act, Congress has reauthorized Section 5 several times, most recently in 2006 -- for 25 additional years.

The Litigation Challenging Section 5
In Northwest Austin Municipal Utility District Number One v. Holder, the plaintiff, a subdivision of Austin, Texas, sued the United States, arguing that Section 5 exceeds the scope of Congress's authority to enforce the 15th Amendment. The plaintiff argued that because it was never found to have denied voting rights to persons based on race, it need not comply with the preclearance requirement. The lower court denied relief to the plaintiff. Today, the Supreme Court unanimously reversed the judgment below. Justice Thomas dissented in part from the Court's reasoning, but he concurred in the decision to reverse the judgment of the lower court.

Although the plaintiff asserted that Congress has exceeded its authority by requiring preclearance, it also contended that the Voting Rights Act contains a statutory "bailout" provision that allows subdivisions to escape the preclearance requirements under certain conditions. The plaintiff argued that it should prevail under either the statutory or constitutional claim.

The statutory claim gave the Court an escape hatch. Rather than resolving the controversial issue regarding the constitutionality of preclearance, the Court punted the issue and decided the case on statutory grounds alone. It reversed the lower court and held that the plaintiff should be able to prove that it meets the conditions for the statuturoy bailout. The case will now go back to the District Court for proceedings that concentrate on the bailout provision.

Justice Thomas, the lone dissenter, agreed that the lower court misapplied the statutory bailout provision, but he would have reached the constitutional question. Thomas would have held that the preclearance requirement exceeds the scope of Congress's authority to enforce the 15th Amendment.

The Supreme Court as Political Player
By declining to address the constitutional question, the Court has avoided deciding a very complex issue that divides many lawyers, legal scholars, and politicians. Many conservatives believe that the preclearance provision is unfair and unnecessary, while liberals argue that preclearance has allowed for the successful political participation of blacks and Latinos and that this success should mean the continuation, rather than cessation, of the policy. In 2006, conservatives in Congress deep expressed concern regarding preclearance, but they ultimately voted strongly in favor of reauthorization, perhaps fearing a backlash prior to the midterm elections.

These same political calculations could have motivated conservatives on the Court, who undoubtedly disagree with preclearance (as indicated by the multiple reservations expressed in the Court's opinion), but who, nevertheless, believe that a ruling against Congress on this important issue could damage the "legitimacy" of the Court and further erode support for conservatives (particularly in light of the likely reversal of Ricci v. DeStefano).

Because the Court did not rule definitively on this issue, however, it will probably reappear in subsequent litigation. Depending on the politics of the moment and the composition of the Court, a subsequent case could provide the opportunity for conservatives to invalidate a remedial statutory measure that Congress strongly supports and that most political scientists, historians and legal experts credit for removing severe structural barriers to political participation among persons of color.

See additional coverage at the SCOTUS Blog.

Dissenting Justice on the DOMA Brief, Part I: The Politics

Nearly two weeks have passed since the Department of Justice filed a controversial brief in Smelt v. United States, a case challenging the constitutionality of the Defense of Marriage Act. GLBT advocates responded to the brief with outrage. John Aravosis at Americablog, for example, wrote a stinging essay denouncing the brief as "despicable" and "gratuitously homophobic." Furthermore, several GLBT Democrats subsequently pulled out of a fundraiser for the DNC sponsored by gay and lesbian rights organizations.

Some of the outcry regarding the brief is absolutely justifiable. Some of the critiques, however, go too far. In many ways, the brief poses a greater problem politically than legally. This essay is Part I of a two-part series analyzing the DOMA brief. While this article examines the political issues the brief raises, a second essay will analyze the legal claims DOJ asserts in the brief.

Politics of the Brief
Politically, the submission of the brief will further erode trust for the Obama administration among GLBT individuals. During the Democratic Primaries and in the general election campaign, President Obama expressed passionate disagreement with DOMA and vowed to seek its repeal. Yet, in the first case requiring his administration to comment on the constitutionality of DOMA, Obama has defended it as a rational law that does not violate any constitutional norms. Accordingly, the brief represents a betrayal by Obama on his pledge of support for GLBT rights and regarding his specific opposition to DOMA.

A closer examination of Obama's record, however, demonstrates that Obama has not always held a consistent position on DOMA -- a fact Dissenting Justice first examined in March 2009. For example, when Obama ran for the Senate in 2004, he wrote a letter to the Windy City Times (a Chicago GLBT newspaper), which states that he opposed DOMA when it was enacted in 1996. In 2003, however, Obama completed a candidates' questionnaire and stated that he did not support the repeal of DOMA. In 2007, a campaign spokesperson for Obama explained that he changed his mind after "gay friends" told him how hurtful DOMA was to them. Of course, Obama could not have intellectually opposed DOMA in 1996, supported it in 2003, and suddenly opposed it again in 2004. Instead, his conflicting stances are likely motivated purely by political calculations.

Today, Obama is engaging the exact same song and dance regarding DOMA. Although he maintains that he supports the repeal of this "hurtful" law, his administration has defended it as legally rational legislation. This position is patently absurd.

Early Warning?
Earlier this year, someone in the Obama administration edited language on WhiteHouse.Gov, which lists the President's position on civil rights issues, including GLBT rights. The older version of the website stated that Obama desired and would advocate the repeal of DOMA and Don't Ask, Don't Tell. The edited language, however, omitted references to DOMA altogether and stated that Obama wanted to change "Don’t Ask Don’t Tell in a sensible way that strengthens our armed forces and our national security."

Several pro-GLBT blogs (including Dissenting Justice) responded to the edited text, after which the White House said that the changes only reflect routine editing and updating. Subsequently, the White House reinstated language indicating Obama's support for the repeal of DADT. The website, however, remained silent on DOMA. It does contain, however, language stating that Obama supports "full civil unions and federal rights for LGBT couples."

Although the White House response to the altered text apparently satisfied other bloggers, Dissenting Justice argued that: "It is difficult to believe that changes in WhiteHouse.Gov language concerning [DOMA and DADT] do not indicate the position the government will soon take in . . . lawsuits" over these policies. Although the DOJ brief is arguably consistent with the vague language on WhiteHouse.Gov concerning "civil unions" and "federal benefits," it is absolutely inconsistent with a preference to repeal the law. Apparently, the edits likely reflected the Obama administration's substantive position on these issues, as Dissenting Justice initially predicted.

In addition to his inconsistent stances on DOMA, Obama has stated that he does not support same-sex marriage but that he opposes efforts to prohibit it (such as California's Proposition 8). Obama says that he is a "fierce" advocate of gay rights, but he has not taken any steps to ensure the passage of legislation advancing GLBT equality, and he has not intervened on behalf of two Asian Americans who face discharge from the military because they "came out" of the closet. And even prior to taking office, Obama created tension among GLBT people when he invited antigay minister Rick Warren to speak at his inauguration.

Reap What You Sow?
Prior to the Warren controversy, GLBT activists gave Obama -- and all of the other Democratic presidential contenders -- a free pass to take conservative positions on GLBT issues. Many political commentators believe that President Bush won reelection in 2004 by drawing evangelicals to the polls with his support of a constitutional amendment banning same-sex marriage. Accordingly, many GLBT rights advocates refused to criticize Democrats because they feared throwing the election to Senator McCain. Perhaps in their effort to protect Democratic candidates these activists convinced themselves (if they did not already believe) that Democrats would actually support GLBT rights once elected. This is an unsophisticated position. True equality is not a political handout. It comes from activism, litigation, and engagement, rather than blind faith.

In many ways, GLBT groups are experiencing the fallout from their generous trust in Democratic politicians -- a stance that prior generations of gay rights advocates refused to take (up until possibly the election of Bill Clinton). Recent events should convince liberals to retire their wrongheaded discourse that embraces "post-racial," "post-feminist," and "post-identity" politics. So long as identity-based inequality exists, identity politics will remain relevant.

Forthcoming: A Legal Analysis of the DOMA Brief

Thursday, June 18, 2009

Kenneth Starr Praises, Offers Support for Sonia Sotomayor

Kenneth Starr continues to express praise for Supreme Court nominee Sonia Sotomayor. It is difficult to miss the irony of Starr, an icon of infamy among Democrats, endorsing Sonia Sotomayor, whom many conservatives view as an icon of infamy. But as a law school Dean (at a school trying to climb in the rankings) Starr cannot afford to alienate powerful judges -- or their supporters.

Starr made very generous statements regarding Sotomayor during an appearance on Fox in late May. Here are some clips from the transcript:
But the key is, what was her record as a judge? And her record as a judge, from everything that I've seen, is a very fine record.

She's been to our campus twice over the last couple of years, and she's worked very hard with incoming judicial law clerks. She's really very energetic, committed to the system. But I will say this. One of the most characteristics of a Justice is that she be humble, that she be modest in her approach to the Constitution. And that, I think, is what the confirmation hearings are really going to come down to. . . .

[Empathy is] an important quality for judges sitting in family court and the like. But my word, when we're talking about the interpretation of the Constitution of the United States, we don't want someone who has an attitude of harshness. But on the other hand, we don't want to have someone who's attitude is the plaintiff always wins or the defendant should always lose.

So evenhandedness, fairness, impartiality -- those are the enduring characteristics and qualities. But when it comes to interpreting that document, those 20 pages and then the amendments, we want someone, it seems to me, who is going to always be modest, always listening carefully to the lawyers, listening carefully to her colleagues, and so forth. And I have no reason to believe that Justice, if she is confirmed, Sotomayor will not be that kind of judge.
In addition to these statements, the Mother Jones blog reports that Starr offered himself as a reference for Sotomayor at a luncheon today:
[Starr] said that he "thinks very well of [Sotomayor]." He noted that he has not written any official endorsement letter for Sotomayor but that no had asked him to do so—suggesting he would if requested. Starr said that he has told more than one US senator that he supports her nomination, but he wouldn't identify which senators he has spoken to about Sotomayor.
With Mel Martinez, Laura Bush, George H.W. Bush, and Kenneth Starr supporting Sotomayor, it seems that this process is moving to cruise control.

IMPORTANT NEWS ALERT: Former President George W. Bush Apparently Suffering from Acute Amnesia

An article in today's Washington Times indicates that former President George W. Bush is suffering from acute amnesia. The article covers a speech Bush delivered in Erie, Pennsylvania. After the speech, Bush answered questions from the audience.

The article reports that Bush, adhering to protocol that governs former presidents, declined to criticize President Obama directly. Bush's defense of many of his policies, however, implicitly criticize Obama (or at least validate many conservative critiques of Obama).

A closer reading of Bush's comments reveals that he is apparently suffering from acute amnesia. Bush, for example, stated that:
I know it's going to be the private sector that leads this country out of the current economic times we're in. . . . You can spend your money better than the government can spend your money.
This simple truism, however, hides some important issues, like the fact that Bush -- not Obama -- proposed TARP (or the "bailout") and signed it into law. Bush and Treasury Secretary Paulson advocated the passage of TARP on the grounds that pumping nearly $1 trillion of "our money" into the private sector would help end the financial crisis.

Furthermore, even after many Republicans criticized the idea of providing federal financial assistance to the automobile industry, President Bush (not Obama) proposed using TARP funds to bail out Detroit. TARP for banks and car companies began during the Bush administration, not with Obama.

To his credit, Bush resisted the opportunity to criticize Obama for closing the Guantanamo Bay detention center. Prior to leaving office, Bush said that he wanted to close the facility as well.

Nevertheless, Bush's comment on the danger of terrorists leaves the impression that he suffers from amnesia. For example, Bush stated:
[T]here are people at Gitmo that will kill American people at a drop of a hat and I don't believe that -- persuasion isn't going to work. Therapy isn't going to cause terrorists to change their mind. . . .
Although Bush mocked the idea of using therapy to reform terrorists, he sent many Saudi detainees from Guantanamo Bay to Saudi Arabia in order to participate in the "Prince Mohammed bin Nayef Centre for Care and Counseling" program, which uses a 12-step program, combined with therapy, to rehabilitate terrorists. The program enjoys mixed reviews, and some of the detainees Bush referred to the program have resumed their participation in Al Qaeda.

Furthermore, Bush seems unable to recall that President Obama apparently agrees with his comments about the dangers of Guantanamo Bay detainees. Obama, like Bush, has decided to use military tribunals, in addition to civilian courts, to prosecute suspected terrorists. Obama has also stated that the government will use the controversial practice of "preventive detention" for "dangerous" individuals who do not face prosecution in either civilian or military courts. The Washington Times article does not mention whether Bush acknowledged the overlap between his policies and Obama's policies related to terrorism, nor does it report the contradictions between Bush's words and his policies.

Finally, Bush seems unable to comprehend current proposals for health care reform. For example, he said that:
There are a lot of ways to remedy the situation without nationalizing health care. . . .I worry about encouraging the government to replace the private sector when it comes to providing insurance for health care.
Of course, President Obama has not proposed "nationalizing health care." Instead, at most, he supports a public plan option that will serve alongside private insurance. If this represents "nationalized" health care, then the country already has a nationalized system, because the federal government and the fifty states already serve as public payers of health care, under Medicare, Medicaid, the VHA, SCHIP, and various other programs. Although conservatives argue that an additional public plan option would cause the collapse of private insurance, this point is debatable, and it certainly is not a specific piece of Obama's proposals.

Wednesday, June 17, 2009

After Controversial Defense of DOMA, Obama Will Give Benefits to Same-Sex Partners of Federal Workers

Last week the Department of Justice submitted a legal brief defending the Defense of Marriage Act against a lawsuit challenging its constitutionality. The brief, which contains politically damaging even if legally predictable arguments, caused controversy among LGBT activists. Today, in a move possibly designed to calm that storm, the President will apparently issue an executive order extending benefits to same-sex partners of federal employees. The full details of the rumored plan, however, remain unavailable, but the New York Times reports that it will not include "health benefits."

Note: Outside of pensions and health care, I am not sure what substantial "benefits" the partners of federal employers receive.

Monday, June 15, 2009

The Blog "Hot Air" Stays True to Its Name With Article Suggesting Supreme Court Intentionally Delaying Ruling in Ricci

The blog "Hot Air" has stayed true to its name by publishing an article which suggests that some justices on the Supreme Court are intentionally delaying a ruling in Ricci v. DeStafano in order to secure the confirmation of Sonia Sotomayor. Although fellow law professor blogger William Jacobson, whose blog (Legal Insurrection) I admire and include in my blog roll, originally published the essay, I find the conclusion sketchy and unsupportable.

Jacobson's argument responds to an article in the Blog of the Legal Times, which analyzes a recent appearance by Justice Ginsburg on CSPAN. During her appearance on CSPAN, Ginsburg noted that the Court had rendered a substantial amount of 5-4 rulings this year and that it would soon issue additional split decisions.

Ginsburg also stated that "one can safely predict [that Ricci], will be among the last [decisions] to come out before the term ends." Ginsburg also praised Sotomayor, stating that "I was cheered by" her nomination and that "I look forward to a new colleague well-equipped to handle the challenges our work presents." Although Supreme Court justices rarely comment on the confirmation process, they have done so in the past. As BLT reports, Justice Stevens and Justice White spoke favorably regarding Judge Bork during his highly controversial and ultimately unsuccessful confirmation bid.

Ginsburg's comments, however, lead Jacobson to worry about the motivation of the justices:
It may be that Ricci will be one of the last decisions issued for entirely legitimate reasons, and Ginsburg merely was stating a fact which shows no motive. But Ginsburg’s endorsement of Sotomayor, combined with Ginsburg’s statements as to the timing of Ricci, creates the unfortunate appearance of one or more of the current Justices playing politics with the timing of the Ricci decision.

I have suspected that one of the reasons the Obama administration wants to rush the Sotomayor confirmation hearings through in mid-July is to avoid the serious political damage to Sotomayor’s confirmation of a reversal on Ricci. Ginsburg’s statements
seem to support this wisdom, from the Obama administration’s point of view, since the Ricci decision appears to be headed for release after mid-July.
Although I will concede that Ginsburg's comments could lead to the concerns held by Jacobson, for the following reasons, I believe that his worries are unwarranted. First, the Ricci decision will probably appear among the last cases this term because it, like the Voting Rights Act case, presents challenging legal issues that will deeply divide the Court. Although much of the public discourse surrounding Ricci portrays it as a slam-dunk case wrongly decided by the Second Circuit panel (that included Sotomayor), the law is, in fact, much more complicated than this public discourse acknowledges.

It is not uncommon to find difficult and divisive cases among the final entries by the Court. Grutter v. Bollinger and Gratz v. Bollinger, two closely divided and important affirmative action cases, were decided on June 23, 2003. Last year's 5-4 ruling in the Second Amendment case Heller v. District of Columbia was issued on June 26. And the Court released its 5-4 ruling upholding the Boy Scouts of America's discriminatory policy prohibiting membership by gays and lesbians on June 28, 2000. This is not a scientific study. Instead, I am simply attempting to demonstrate that in my experience, it is not uncommon for the Court to decide divisive and important cases near the end of the June. Accordingly, the fact that Ricci presents complicated legal and factual questions that divide the Court could explain why the Court will decide it near the end of the current term.

Jacobson believes that the Court could delay issuing a ruling in Ricci until late July. But if the Court goes on recess at the end of June, as is customary, then the Ricci decision will probably emerge in the next two weeks -- not in July.

Furthermore, I doubt that the Supreme Court justices have attached as much importance to Ricci as Sotomayor's political opponents. First, because Sotomayor has voted on thousands of cases, isolating one and trying to make it a critical element in an evaluation of her fitness for the bench seems arbitrary and irrational. Also, because the law in this area is close -- as demonstrated by the divided en banc decision -- the effort to use this case in order to defeat Sotomayor's nomination is pretty weak.

Finally, if, as Ginsburg suggests, this case is among a slew of forthcoming 5-4 rulings, then 4 Supreme Court justices, 7 Second Circuit judges (including Sotomayor), and one Federal District Judge will have all voted against Ricci and in favor of the City of New Haven. This breakdown does not support conservative arguments that cite to Ricci (and its potential reversal) in order to portray Sotomayor as a wayward judge who is incompetent and unable to apply the law correctly. Instead, the number of judges who could potentially agree with Sotomayor provides further evidence that her opponents' citation to Ricci (and its possible reversal) is merely a game of politics -- rather than an honest discussion of the legal issues the case presents.

PS: Although I doubt that the Supreme Court is playing confirmation politics, I believe that the Democrats sought a mid-July date for the start of Sotomayor's confirmation hearings because that would allow two weeks for any fallout over Ricci to subside.

Enough About the Doctors. . . .What Do Nurses Think About Health Care Reform and Why We Should Listen to Their Ideas.

Last week, the media covered with much fanfare the American Medical Association's disagreement with the idea of a federally administered public plan option as a part of health care reform. President Obama promised to implement a public plan during his campaign, but he seemed to back away from the idea earlier this year. Recently, however, the President, backed by many Democrats in Congress, reiterated his support for a public plan.

The AMA's rejection of the public plan puts this powerful doctors' lobby in direct opposition with the President. The AMA, insurance companies and Republicans oppose a public plan. Republicans have waved the red flag of "socialism" in their rhetoric denouncing a public plan. Insurance companies are clearly concerned about having a deep pocket competitor that could reduce costs to plan participants and drive down their own profits. Doctors are also concerned about the bottom line. They believe that a public plan would draw people away from private insurance, and that the plan would offer them lower rates of reimbursement relative to private health insurance.

What About Nurses?
Media outlets have paid very little attention to another important group in the delivery of health care: Nurses. Indeed, nurses probably have more "contact hours" with patients than doctors, and they serve a vital role in the delivery of health care.

Historically, however, nurses have suffered from pernicious societal stereotypes and unequal power, relative to doctors and other professionals. The nursing profession is predominately female. On average, nurses have less educational training and wealth than doctors. These factors undoubtedly cause policy makers and the media to ignore the thoughts of nurses regarding important health care issues.

Although the media have largely overlooked the opinions of nurses regarding health care reform, nursing organizations have proffered reasoned and legitimate positions on the subject that warrant intense consideration. Because nurses have a much smaller pecuniary stake in the outcome of many reform proposals, their positions might reflect patients' and the public's interests more accurately than the views of doctors and insurance companies, which are undoubtedly influenced by personal financial considerations.

Public Plan
There are several unions that cater exclusively to nurses. Nurses are also members of general labor unions. Using the position of these unions as an indication of what nurses favor, it appears that nurses disagree with doctors on the issue of a publicly sponsored health plan.

The California Nurses Association and its national arm, the National Nurses Organizing Committee, represent 80,000 nursing professionals in 50 states. CNA/NNOC will become the nation's largest nurses union, after it merges with with the Massachusetts Nurses Association and United American Nurses. Following the merger, CNA/NNOC will represent 150,000 nurses. The CNA/NNOC supports "universal health care" in the form of a "single-payer style system." CNA/NNOC has been a strong advocate of a single-payer system and recently testified before Congress in support of this policy reform.

The Service Employees International Union is a general labor union that represents 80,000 nurses. Although SEIU and CNA/NNOC have experienced bitter clashes in the past regarding policy, the two organizations have "buried the hatchet" and have agreed to help unionize workers in the nation's largest hospital systems. Under this joint effort, nurses will join CNA/NNOC, while other hospital personnel will join SEIU. The organizations, however, plan to create a "joint union of registered nurses" in Florida.

SEIU, like CNA/NNOC favors a single-payer public plan option. Indeed, SEIU, along with the American Federation of State, County and Municipal Employees, dropped out of government-sponsored health care negotiations because it feared that other members of the consensus group would reject a public plan option.

The American Nurses Association (a professional association -- rather than a union) represents the interests of the nation's 2.9 million registered nurses (RNs). Last week, the ANA responded to the AMA's rejection of a public plan option with a critical press release that includes the following language:
The American Nurses Association . . . believes the best way to achieve its overall health system goal – guaranteed, affordable, high-quality health care for all – is through the inclusion of a public health insurance plan option in any health care reform legislation. ANA is deeply disappointed to learn of the American Medical Association’s position that private health insurance alone should dictate coverage options for all who don’t qualify for existing public plans, such as Medicare . . . .

A public health insurance plan would expand choices and help protect against potential economic calamity for individuals or families who are not satisfied with their current health coverage, have difficulty paying for their health care, or cannot find
affordable coverage. ANA supports President Obama's call for a public plan option, and applauds its inclusion in Senator Kennedy’s comprehensive health reform legislation introduced June 9.
Although the media rushed to cover the AMA's dissent from President Obama's plan, it failed to give equal time to the ANA and to other nurses associations that offer a contrary view among health professionals. The uneven coverage deprives the public of access to diverse viewpoints and important information regarding this critical subject.

Nurse-Patient Ratios
CNA/NNOC has also been instrumental in pressing states to lower the ratio of patients to nurses. CNA fought a tough 12-year battle to legislate reform in this area in the State of California, even suing Governor Schwarzenegger who tried to kill the statutory requirements once he became governor. The California courts, however, ruled that Schwarzenegger exceeded the scope of his authority as governor.

Presently, bills are pending in both the House and the Senate which would enact new staffing ratios throughout the nation's hospitals. Representative Jan Schakowsky introduced the House measure (as she did in previous years), while Senator Barbara Boxer sponsored the Senate bill. In addition to mandating a reduction in staffing ratios, the proposed legislation contains "whistleblower" provisions that would protect nurses who report noncomplying facilities.

Nurses stand to gain more from the reduction of staffing ratios than from other issues related to health care reform. Thus, they are not exactly "unbiased" parties to this subject. Nevertheless, the staffing ratio issue raises interesting questions that should inform the broader topic of health care reform.

Much of the debate over health care reform has centered around the need for cost reductions. Hospitals, understandably, oppose reducing staffing ratios on the grounds that this will increase their costs. CNA/NNOC, however, cites to several studies (in a neatly prepared brochure), which indicate that reforming staffing ratios by reducing the number of patients per nurse will ultimately decrease costs.

The research concludes that the present ratios overburden nurses and lead to costly medical mistakes. If nurses could spend more time in direct contact with individual patients, they could diagnose and treat (or seek treatment for) conditions in their patients, which would reduce preventable deaths, the need for return visits, and the expense of subsequent treatment. The research also links high turnover rates among nurses to high patient loads. Reforming staffing ratios could reduce the costs that hospitals spend to replace nurses, pay existing staff overtime, or to hire temporary nurses to cover shortages. Nursing professionals, however, do not hold uniform positions on the benefits of mandatory national staffing ratios (See: American Nurses Association - Mandatory Hospital Nurse to Patient Staffing Ratios: Time to Take a Different Approach).

Closing Thoughts
Although this essay finds substantial disagreement among leading nurses unions and doctors' representatives, exceptions to this general pattern exist. Physicians for a National Plan and Doctors for America, for example, support universal health care and a public plan, but these groups are much smaller and probably less powerful than the AMA. Some opinion polls, however, indicate that the majority of doctors and the American public favor a government-sponsored insurance plan.

The public plan opposition legitimately questions the impact of such a plan on the quality of care. This question seems relevant to and appropriate for every health care reform issue. But arguments related to the loss of profits for insurance companies ring hollow. Health care costs represent an enormous drain on individuals, business and society. If competition generated by a public plan could reduce these costs, then, as a matter of a longterm investment in society, a public plan seems like a valid and sensible policy.

If Congress creates a new public plan, insurers will have to lower their own costs, face reduced profits and adjust like every other sector in this changing economy. The nation should not compromise its economic and medical health in order to fatten the coffers of insurance companies and doctors. The country can and should ask the same of insurance companies that it has demanded of General Motors, Chrysler, and American consumers.

Update: This article was edited to include the views of the American Nurses Association regarding the "public plan" debate.

Sunday, June 14, 2009

George Will Comes Clean, Demands "Judicial Activism"

Earlier this year, George Will wrote a column blasting the bailout as an unconstitutional delegation of legislative power to the president. Historically, the Supreme Court has been extremely reluctant to invalidate legislation as violating the "nondelegation doctrine." Furthermore, the Constitution clearly gives Congress power over the economy and the president the power to execute laws passed by Congress. Moreover, the bailout has received support during two sessions of Congress, from two presidents, and from two Secretaries of the Treasury. Consequently, after Will published his article, I described it as a demand for "judicial activism" from a conservative -- which seems to violate a sacred conservative principle. Nevertheless, Will has now come clean and made explicit his demand for an activist "conservative" Supreme Court.

See: More Judicial Activism Please.

Will is not the first conservative to demand judicial activism recently. Many conservatives, for example, have criticized certain rulings by Sonia Sotomayor, which closely follow the law, but reach outcomes that conservatives politically oppose.

Madness in Iran: Protests, Arrests and Political Mayhem

Americans thought Bush v. Gore was stressful: Protests Flare in Tehran as Opposition Disputes Vote - New York Times.

Media Matters: NYT, Fox and MSNBC Delete Sotomayor Comment Regarding Her "Socio-Economically Poor Background"

Recently, the New York Times produced video footage of a panel discussion during which Supreme Court nominee Sonia Sotomayor stated that her standardized test scores (not grades) were below the average of persons at Princeton and Yale Law School. Although she ultimately graduated from the top of her class at Princeton and performed excellently at Yale Law School (which does not "rank" students), conservatives who oppose affirmative action have used these comments in order to depict Sotomayor as an undeserving beneficiary of race-based admissions policies.

There is one glaring problem with their analysis, however: The edited video footage deletes Sotomayor's statement that she "is from what is traditionally described as a socio-economically poor background," which leaves the impression that Princeton and Yale only considered "race" as an affirmative action category. Media Matters uncovered the misleading reports (on Fox, MSNBC and in the NYT).

Many studies show that academic performance in college and graduate or professional school correlates more strongly with prior GPA than with standardized tests. Furthermore, it is well known that expensive test preparation courses, which benefit the wealthy, can add significantly to a test-taker's performance. It is unclear whether Sotomayor enrolled in professional test preparation courses, but it is unlikely that she did.

Also, Sotomayor's gender probably played a tremendous factor in her admission to college and law school, but most conservatives have reserved their anger for race-based affirmative action. Undoubtedly, graduating summa cum laude from Princeton, one of the highest ranked universities in the world, strongly influenced the Yale Law School admissions committee (as it should have). This remarkable achievement, however, receives little attention from individuals who seek to blame affirmative action for their own irrational refusal to appreciate her intellectual power (and the achievements of other persons of color).

Although conservatives argue that affirmative action "stigmatizes" persons of color as inferior, this racial stereotype predated affirmative action by centuries, and it clearly remains a part of American culture. This stereotype operates so powerfully among those who accept it, that even the top graduate from one of the world's top colleges and law schools cannot escape it. Blaming affirmative action for this patent bigotry is an act of cowardice.

Ironically, conservatives have chosen to deemphasize Sotomayor's poverty even though they often advocate affirmative action on the basis of "class," rather than race. I have always doubted the sincerity of the class-based "alternative" (often, affirmative action is based on race and class), given conservative opposition to antipoverty programs -- which often portrays beneficiaries as lazy persons of color. Nevertheless, if the class argument comes from an honest place, then conservatives should point to Sotomayor's academic and professional success as vindicating -- rather than delegitimizing -- societal efforts to extend opportunities to poor and disadvantaged individuals. Instead, they have chosen to downplay or question her obvious success and to vilify an individual who succeeded despite her severe disadvantages. This approach is politically suicidal -- not to mention deceitful and hypocritical.
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