Fables of the reconstruction

John McCain: Communist

What else could explain this?

Trevor Potter, the general counsel for the McCain-Palin campaign, sent a letter on Monday to Chad Hurley, the chief executive of YouTube, complaining that the video service, now owned by Google, has inappropriately removed McCain commercials from its site.

The commercials incorporated snippets of television news broadcasts. Using provisions of the Digital Millennium Copyright Act, the news organizations demanded that the commercials be removed from YouTube because they violated the organizations’ copyrights. ...

Mr. Potter praised YouTube as a “platform for political candidates and the American public to post, view, share, discuss, comment on, mash-up, re-mix, and argue over campaign related videos.” Then he argued that the excerpts of news broadcasts represented a fair use, which exempts them from control by the copyright owner. ...

Fair use? No! Really? What a novel thought! What else, Mr. Potter?

Mr. Potter complained about how the act’s provisions seem to favor copyright owners. If the creator of a video complains that it has been removed inappropriately, the act does not allow it to be put back on the Internet for 10 to 14 days. ...

Oh noes! I had no idea!

Mr. Potter proposed that YouTube itself review all demands asking that videos from politicians be removed, to determine if the copyrighted material is covered by the fair use exemption. Most Internet sites want to avoid becoming judges in such legal disputes.

Perhaps, maybe, we could give everyone who is subject to a DMCA notice an opportunity to challenge it ... like, I don't know, a hearing ... and we could afford them some time to present evidence that they hadn't violated the law ... and we could call that due process.

And last but not least, we need to track down whoever passed this dirty ol' DMCA in the first place:

Until now, Senator McCain has not had much common cause with the Internet free speech movement. He voted for the D.M.C.A., and he opposes legislation to enforce network neutrality.

Oh. My goodness. John McCain was against free speech before he was for it. And now he's a dirty fuckin' hippie commie who wants free love and extra napkins and the license to remix Katie Couric into 80's porn movies. Not really. But he is a commie.

Compare, Contrast, Reflect

Zenpundit, a conservative blogger who I read regularly on all things small-war:

I’m getting the vibe that the Obamaniacs, who already see “political opposition= racism”, will, if victorious, be all too willing to use the hand of government to pressure critics into silence.

The charge that political opposition is being equated to racism is patently ridiculous, but it's the rest of the sentence that I want to focus on. Consider my friend Ray, not an Obamaniac but certainly an Obama supporter:

[After] this recent outrage-du-jour - John McCain telling campaign advisors that he's going to "whip his you-know-what" (Obama) in the next debate, the cries of racist, racist comment, racist subtext, etc went to red in some areas of the liberal blogosphere.

Sorry, folks, I just don't see it. And feel free to make your argument in the comments or send me a strongly worded email but it's not really open to discussion as far as I'm concerned so don't expect a reply.

A conclusion that I completely agree with.  I guess most people would consider me an Obamaniac, because I've been volunteering for the man since March 15th. But I don't consider myself one, and as evidence I offer this, this, this and this.

In fact, I don't think I know anyone  who volunteers for the campaign on a regular basis who I would classify as an Obamaniac, meaning, a hero-worshipper.  That's a portrait created by the media and Obama's political opponents, largely. (They also think we Obama volunteers are all teens and twenty-somethings, which is really funny.) The people I have been working with for seven months really, really admire his oratory and his campaign skills. He's a very inspiring speaker. After he stops talking, though, we do continue thinking.

So, among us not-quite-Obamaniacs, is there a "vibe" that we'd "be all too willing to use the hand of government to pressure critics into silence"? Are you fucking crazy? First of all, I am a card-carrying member of the ACLU, have been my entire adult life. When I shook Obama's hand the other night, I had two items attached to my lapel: This button, and my ACLU pin. This was in a room full of lawyers, people who, despite what you may otherwise have heard, believe in the rule of law. The vibe was not of a mob ready to suppress dissent.

Speaking of suppressing dissent: I am amazed that anyone could read what liberals have been writing about for the past eight years and come to the conclusion that, in order to clean up the mess left by a gang of venal, incompetent ideologues who labeled opposition to war as treason - people who really and truly did use the hand of government to pressure critics into silence, including outing one of our own intelligence officers - we might come into power and return the favor. Yes! That's what we've wanted all along! We don't mind the abuse of power, we just wanted the power in our own hands. You've uncovered our secret plan. Jesus fucking Christ.

To put it less sarcastically, we're the people who want to defend the Bill of Rights. That's part of why we're doing this: We see it imperiled, and fear we're already too late to restore what's been damaged. We don't intend to do any more damage ourselves, and believe me, we've paid enough attention  throughout the Bush years to know what self-deluded defenders of the nation sound like when they're talking themselves into taking a little extra-constitutional authority. A President Obama had better think long and hard about accepting the advice of career intelligence types who try to mau-mau him into continuing warrantless wiretapping, for example, because as soon as it leaks he'll see his erstwhile Obamaniacal support fly right out the fucking window.

Zenpundit's a pretty smart guy, but even someone at the open-minded end of the conservative spectrum has no sense of political proportion. I'm not even mad at him; I can't feel insulted when someone has such a thoroughgoing misunderstanding of what liberals are all about. But if a guy like him spouts such claptrap, it's no wonder the average right-winger believes that Obama is a secret Muslim terrorist traitor. Whatever McCain and Palin do or don't do in the next three weeks is irrelevant. The storyline making the next Democratic President out to be an authoritarian is the same one we had about the last Democratic President. It didn't start with McCain and Palin; they're simply trying to ride it, and it won't end with them. If Obama wins, there will be a hard core of lunatics who will never, ever accept the legitimacy of his Presidency. Fortunately for us all, they will never again be able to do the damage they did during the impeachment in the 90s, when they controlled Congress. Plus, Obama doesn't seem to be the kind of guy to give them an opening by getting sucked off by a young tart in the Oval Office.

So, I am dismayed by all this nonsense, but remain hopeful. Maybe Obama is on to something with his kumbayah shtick. He might be able to make people realize McCain is right that a President Obama is nothing to fear. He's a moderately liberal Senator with a track record of cautious consensus-building that has apparently served him well. He's a technocrat, it seems to this not-quite-Obamaniac, someone who dispassionately masters what he works at, from the jump shot to law review to public speaking to winning the Presidency. His very lack of strong liberal orthodoxy almost cost him the nomination, in fact. If he carries that approach into the White House, marginalizes the lunatics in the far Right and discredits the crazy storyline, the GOP might have to abandon it as a means to power. Clearly, the Republicans are not responsible enough to discredit the lunatics on their own. Who knows?  It could work. Anyway, nothing else has.

Justice Delayed Indefinitely

As I predicted, my friends:

A federal appeals court last night temporarily blocked a judge's order that the government must release 17 Chinese Muslims held at the U.S. military prison at Guantanamo Bay, Cuba, into the United States.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued the "administrative stay" at the request of the Justice Department.

That stay will turn into a successful appeal, and at some point Cully Stimson will trot out to call Judge Urbina a terrorist sympathizer.

Court Orders 17 Gitmo Inmates Released By Friday

A good decision by the judge, but I think this will be stayed on appeal or, failing that, just plain ignored by the Pentagon:

A federal judge today ordered that 17 Chinese Muslims held at the Guantanamo Bay military prison be released into the United States by Friday, agreeing with the detainees' attorneys that the Constitution bars holding the men indefinitely without cause.

It was the first time that a U.S. court has ordered the release of a Guantanamo detainee, and the first time that a foreign national held there has been ordered brought to the United States.

U.S. District Judge Ricardo M. Urbina issued the landmark ruling in the case of a small band of captives, known as Uighurs, who have been held at Guantanamo for nearly seven years and are no longer considered enemy combatants by the U.S. government. ...

Urbina said in court that he ordered the release "because the Constitution prohibits indefinite detention without cause." He added, "The separation of powers do not trump" the prohibition against holding people indefinitely without trial. ...

The Uighurs are natives of northwestern China who have been demanding an independent homeland. Chinese authorities consider them separatists. Over the years, some have sought military training in other countries.

In 2001, most of the Uighurs now in Guantanamo Bay were living in camps in Afghanistan until U.S. airstrikes drove them into neighboring Pakistan. They were captured there and turned over to U.S. authorities.

The government has asserted that the Uighurs were members of the East Turkistan Islamic Movement and trained at camps affiliated with the Taliban or al-Qaeda. The Bush administration designated ETIM a terrorist organization in August 2002, after the Uighurs were taken into custody.

The Uighurs' attorneys have said the men never took up arms against the United States. And the Uighurs have told military court officials that they are sympathetic to the United States.

There is no way that the conservatives on the Supreme Court will permit the release of any Gitmo prisoners before the election for lack of evidence, because if that happens it will just snowball.  If Kennedy goes rogue, then Sec. Gates will reluctantly have to decline to obey the court's order. Whatever rhetoric Judge Urbina uses about the separation of powers not trumping habeas corpus, I do not believe a federal judge will have the balls to order the Secretary of Defense arrested. Which is what it would take.

Also, look forward to McCain launching attacks on Obama for not denouncing this activist, terrorist-loving judge, too. What do you expect from someone who pals around with people who hate America?

Integrity

ACLU blog of rights:

Army Lieutenant Colonel Darrel Vandeveld, the lead prosecutor in the military commissions case against Mohammed Jawad, has resigned in protest because the prosecution team was not providing the defense evidence that could indicate Jawad’s innocence. Jawad was a teenager when he was captured in Afghanistan and he’s one of the two youngest prisoners at Guantánamo.

That's how a military lawyer serves his country.

The Dodd Plan and Separation of Powers

Prof. Michael Froomkin makes a point that I had meant to put into my summary: The Emergency Oversight Board set up under the Dodd Plan has both executive-branch and legislative-branch officials on it, which raises the issue of separation of powers:

I agree this isn't an oversight board as we usually understand it, since it has no powers other than advising and making reports.

It's important to note, however, that so long as the board -- whatever you call it -- has members appointed directly by members of Congress, then the separation of powers (as repeatedly and forcefully enunciated by the Supreme Court) excludes the board from the exercise of ANY executive power.

(If you want a body that can do more than study and recommend, all members must be appointed by the President, or maybe by the Secretary.)

To oversee something is not the same as directing it. I don't think I agree that an "oversight board" usually has powers other than advising and making reports, since that's exactly what the House Oversight Committee does, but the rest of his comment is spot-on.

They Do Have the Right of Free Speech; They Just Don't Have a Right to a Tax Exemption

Typical right-wingers, wanting the benefits without any of the responsibilities:

Declaring that clergy have a constitutional right to endorse political candidates from their pulpits, the socially conservative Alliance Defense Fund is recruiting several dozen pastors to do just that on Sept. 28, in defiance of Internal Revenue Service rules.

The effort by the Arizona-based legal consortium is designed to trigger an IRS investigation that ADF lawyers would then challenge in federal court. The ultimate goal is to persuade the U.S. Supreme Court to throw out a 54-year-old ban on political endorsements by tax-exempt houses of worship.

Disclaimer: I haven't read their legal theory, maybe they have something substantive, blah blah. But it sounds to me like they have their heads up their asses, in that particular self-righteously ignorant way that fundamentalists do.

Congress created a privilege for religious institutions by granting a tax exemption. But in exchange, the religious organization couldn't use the tax-free money to do politics. Here's the basic principle, people:  Like any benefit given by the government, you have no constitutional right to receive a tax exemption. If you want the benefit, you have to play by the rule Congress set. This is a well-settled principle of constitutional law. I predict this effort is not just doomed to fail to overturn this principle, but the churches involved are looking at catastrophe.  Not that I mind one bit.

The Golden Age of Conservative Legalism

Why it is so important for liberal lawyers to build institutions like the American Constitution Society - and another reason for us all to want Obama to win the White House this fall:

In other words, there’s clearly a lot of right-leaning legal scholars out there who instinctively think the Court’s most grievous error was not that it ushered in the so-called Rights Revolution of the 50’s and 60’s but that it refused to invalidate the New Deal in the 30’s and 40’s.

Part of the mainstream of conservative legal scholarship is to return the country's legal system to robber barons, de jure segregation and the general evisceration of individual civil liberties.

Now the good news:

Right-leaning legal thinkers are — if the book The Dirty Dozen is any indication — all mixed up about judicial review right now. The Dirty Dozen has all the standard conservative tropes about how bad it is for activist judges to make things up. And yet every one of the 12 cases the authors single out for disrepute is one in which the Court deferred to the state or national government. So the problem is not, it turns out, that unaccountable judges are running wild and trampling democratic will. It’s that unaccountable judges are being too respectful of popular will. ...

There was a time, of course, when originalism would have supplied the answer. But while the authors of the Dirty Dozen try to claim the originalist high ground in the introduction — and again in the conclusion — they candidly (and admirably) concede that orginalism is actually of little help in explaining their hostility to a number of the cases on their list that, remember, was chosen by 74 like-minded legal scholars. ...

So, if you are feeling blue about how effective the right wing has seemed to be in capturing constitutional discourse in recent years, cheer up. The Dirty Dozen suggests the conservative legal movement’s having a tough time figuring out its talking points for the future.

Can I Make My Own Special Parking Permit, Too?

So, parking in Philly is ... complicated. You have laws, then again you have practices. For example, it is illegal to double park. However, you have South Philly, in which double parking is the norm. It has been done that way there for some decades, and the police don't bother the locals. For that matter, the cops themselves disproportionately live in South Philly.

Another local custom is that you can park illegally on weekends in some neighborhoods. Near me, that would be Lombard and Pine Streets, around 18th & 19th. The way that evolved is that there is a church and a synagogue in that area. Members of those houses of worship drive there for weekend services, and naturally, there is not adequate legal street parking, so they park illegally on the wrong side of two-lane one-way streets. And the cops didn't ticket them, because you can break the law if it is for a religious reason (?). But us seculars could draft in behind the pious, because nobody got tickets for parking illegally on those days.

Until now, apparently.

I was following the custom last Saturday when I was visiting a friend around 18th & Pine. Lots of cars were parked illegally, and I joined them. When I returned 45 minutes later, I found this:

I had parked behind this car:

Mildly exercised by getting ticketed and naturally curious, I checked his windshield, and found no ticket but instead, this:

Now, tell me: Does that look like an official government-issued parking permit to you? It looks to me like something that someone at the synagogue printed up. Now, I have nothing against the congregants of Beth Zion and Beth Israel following the local custom and parking illegally on Saturdays. But I am resentful as hell that they get to do it when the rest of us don't.

With a total lack of spare time, I don't know if I can follow up on this. Clearly, I have no easy way to challenge my ticket (and I paid it already anyway). What I would like to find out is who told the ticket writers to honor this homemade permit.

Nevada ACLU Adopts Individual Gun-Rights Model

American Constitution Society:

Breaking with the national organization’s stance on a right to bear arms, the Nevada affiliate of the American Civil Liberties Union supports individual gun ownership rights. In a statement posted on its Web site, the Nevada ACLU said it “respects the individual’s right to bear arms subject to constitutionally permissible regulations. The ACLU of Nevada will defend this right as it defends other constitutional rights.” The Nevada affiliate’s board of directors reached the decision following the U.S. Supreme Court’s ruling in D.C. v. Heller, which found that the Second Amendment protects an individual right to bear arms.

ACLU National's response to Heller:

The ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court’s decision in D.C. v. Heller. While the decision is a significant and historic reinterpretation of the right to keep and bear arms, the decision leaves many important questions unanswered that will have to be resolved in future litigation, including what regulations are permissible, and which weapons are embraced by the Second Amendment right that the Court has now recognized.

They get justifiably pasted as hypocrites in comments.

This is the first time that I know of that ACLU National has taken a position that is less rights-protecting than that of the Supreme Court, indeed, than that of the right wing of the Supreme Court.

The Second Amendment Ver. 2

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

-Second Amendment to the U.S. Constitution

Coming as soon as Monday, the Supreme Court will rule in the case of Heller v. D.C., an appeal by the District of Columbia of a lower court ruling that its restrictions on gun ownership violate the Second Amendment. Most legal observers predict that the Supreme Court will hold for the first time since the adoption of the Bill of Rights that the Second Amendment protects an individual right to own a gun, rather than protecting some sort of collective right on the part of states to have militias. Why? Because the Court has turned down many appeals of gun lawsuits in the past, so the only thing that seems to explain the Court taking this case is a change of personnel - the addition of right-wingers Alito and Roberts. Given that lineup, the only reasonable explanation for them taking the appeal is to affirm the lower court ruling. If not, why grant cert?

This outcome will be the result of decades of work by right-wing lawyers and politicians to put their people on the bench and on law school faculties. The professors ginned up the research used to justify decisions that create clarity in a constitutional provision where none otherwise exists, and the tame judges took it and guided it through the courts. It's a model of legal-political power in action, and liberals would be well advised to study how they did it.

From the conservative political perspective, the drive to invent a new constitutional right to own guns springs out of white supremacist ideology. Gun rights only became a political rallying point when blacks started gaining civil rights. The psychological underpinning for fanatical gun rights people is fear of being confronted by criminal or militant blacks out to kill them, rape their women and steal their property. (There has been a patina of anti-totalitarian government hysteria laid over the racist core over the years, but the black helicopter crowd has always been outnumbered by the ones who cite "crime" as their reason for packing.)

When Heller comes down, though, the hardcore gun rights people may be getting less than they hope. To say that something is a "right" is really to say nothing at all - the question is how strongly the Court will define that right. The abortion cases are a good illustration of this. The Roe decision and cases that followed it said that strict scrutiny applies, which meant that the government had to prove that the law was “narrowly tailored to achieve a compelling state interest”. Under that standard, most abortion regulations were unconstitutional. But then the Rehnquist court shifted to intermediate scrutiny in the Planned Parenthood v. Casey case, which opened the way for things such as waiting periods (like guns - how funny). Then in the recent so-called “partial birth abortion” case, Justice Kennedy went out of his way to imagine that a woman getting a late-term abortion might possibly regret it, and that Congress could ban it to prevent that imaginary regret — no proof was needed. To most observers, that abandons even the intermediate scrutiny of Casey. But, the Court says, abortion is still a fundamental right, you just can’t enforce it.

Something similar may happen in Heller. As fleshed out much more fully here, the Court has a strong incentive not to apply strict scrutiny, an incentive that is ironically tied to the white supremacist foundation of the gun rights movement: The primary beneficiaries of a strong right to own a gun would be ... criminals. Put aside for a moment the paranoid NRA fantasies of liberal gun grabbers coming to disarm honest, hard-working, white conservatives through such things as background checks and anti-straw purchase laws. There are many state and federal laws that make it a crime to merely possess a gun, even if the gun is never used, if someone is engaged in committing another felony such as, say, drug trafficking. If the right to own guns is as fundamental as the right to free speech, then putting even a drug dealer in prison for owning a gun would be as unthinkable as putting him in prison for owning a book. There are probably hundreds of thousands of people either currently in prison or on parole or probation, or otherwise suffering some legal detriment, because of a non-violent gun possession conviction. All of these people would have to be re-sentenced, and possibly set free, if the right to own a gun enjoys strict scrutiny. And the laws that put them in prison in the first place would be struck down, depriving police and prosecutors of one of their favorite tools.

This would be a political nightmare for conservatives, and the right-wingers on the Court know it.  A strong right to own guns would open up a flood of litigation, which would be bad enough from an administrative perspective. But since blacks are disproportionately jailed for crimes that whites commit but don't get caught doing (such as drug trafficking), the main storyline would be of black felons being released with a brand-new fundamental right to arm themselves. This probably explains why the Bush Administration's brief in the case does not argue for strict scrutiny. (In fact, their brief argues that there is an individual right to own a gun - but D.C.'s total ban on handgun ownership might be constitutional anyway!) If the liberals on the Court really wanted to be mischievous, they would flip and vote for strict scrutiny along with (probably) Scalia and Thomas. Sadly, that's unlikely to happen, although it would be hilarious if it did.

The most likely outcome, then, is that the Court will solemnly declare that there is an individual right to own a gun, but then define the right narrowly so that none of those criminal laws that conservatives like so much get overturned. D.C.'s total prohibition on handgun ownership will likely be gone, but the majority may provide leeway for the District to have severe restrictions that stop just short of a total ban. All in all, it's likely to be an important symbolic victory, but only symbolic.

The Rule of Law in Application

Here's your civics lesson for the day:

So, Army Col. Peter Brownback was one of the judges presiding over detainees' cases at Guantanamo Bay. He was the judge in the case of Omar Khadr, a Canadian citizen who was captured at age 15 in Afghanistan and accused of throwing a grenade that killed a Special Forces soldier. Khadr has been on schedule to be the first Gitmo defendant to go to trial.

Last year, Brownback tossed the charges against Khadr for lack of jurisdiction. He said, on the record, that the Department of Defense was displeased with his ruling, which was eventually overturned on appeal.

Under pressure to set a trial date, Brownback told prosecutors they first had to turn over evidence to the defense. Such as records of Khadr's treatment at Gitmo. Which, for some reason, they don't want the defense to have.

On Thursday, Brownback was fired, presumably so that a more pliant judge can be substituted: "Chief judge for the Guantanamo tribunals, Marine Col. Ralph Kohlmann, dismissed Brownback and appointed a new judge for Khadr's case without explanation."

The rush to set a trial date is due to an election coming up. These trials are showpieces designed to fire up the moron base of the Republican Party. And you can count on McCain being all in favor of them and accusing Obama of being weak on defending America if he disagrees.

(Via Lizard Breath at Unfogged.)

Britain is Rapist Heaven

The British government monitors its citizens every movement with the largest network of closed-circuit television cameras in the world.  At the same time, this:

In Britain, a nation whose justice system has been used as a model around the globe, government officials and women's activists agree that rape goes largely unpunished.

Solicitor General Vera Baird, who oversees criminal prosecutions in England, estimated that 10 to 20 percent of rapes are brought to authorities' attention. According to government figures, 14,000 cases a year are reported and 19 out of 20 defendants walk free.

That's a 5% conviction rate. (In the United States, it's 13 percent, but not much better.) Let's just pause: That means in the U.K., out of a minimum of 70,000 rapes a year, 56,000 victims don't even bother to report the crime. Of the 14,000 who do report it, only 700 see their attacker(s) get punished.

About 25 percent of reports of assault and 75 percent of homicides lead to someone being found guilty. In the 1970s, the rape conviction rate ran at more than 30 percent. The difference now is that there are far more "date rape" cases ... .

It is illegal in Britain to interview jurors -- even after a verdict. But public opinion polls show that a sizable proportion -- a quarter to a third -- of Britons say a rape victim is responsible for the attack if she is drunk or wearing "sexy" clothes.

"As many as one in two young men believe there are some circumstances when it's okay to force a woman to have sex," said Conservative Party leader David Cameron, citing studies. ...

Until a few months ago, prosecutors were barred from interviewing victims and met them only on the day of the trial.

Ken McDonald, the head of the Crown Prosecution Service, called this restriction "mad." He said it dated back centuries to the days when witnesses stuck straw in their shoes outside courtrooms to indicate their testimony could be bought.

Clearly, the problem here is conservatism, in two senses: The culture's clinging to traditional notions of acceptable female behavior, and the law's inability to catch up with the times on such a thing as witness interviews.

Note also how the U.K.'s lack of a constitution harms crime victims in this instance: It is illegal to interview jurors, even after a case. In the U.S., that kind of law would be flatly forbidden as unconstitutional prior restraint of the press. If you had a full-on press inquiry into why particular jurors acquitted particular defendants, you could expose the sexism underlying the verdicts.

2008 ACLU Membership Conference: June 8-10, Washington, D.C.

I'll be attending this again this year. (My posts from the last conference are here, here, here, here, here and here.)

There will be a lot of back-slapping and "yay for us" at this thing - there always is - but there will also be substance. I'm particularly looking forward to the opening plenary with Glennzilla, Rachel Maddow and Arianna Huffington, Anthony Romero's keynote the next day, and the workshops on the surveillance society and freedom of information on the web. The guy who played Kumar in Harold & Kumar will be there. Also, Barry Lynn and Justices Scalia, Souter and Ginsberg will attend a lunch honoring Nadine Strossen.

Other than Scalia, there is a remarkable lack of conservative speakers. Last time, we had Ken Starr, Bob Barr, and Wayne LaPierre, as well as Scalia. Barr actually over very well. The absence of such people this time probably means that Romero has given up on his quest to make common cause with conservative civil libertarians, which is sad but not really surprising.

Here's the full agenda. If you want to go, full registration is $375, but the day passes are more affordable.

The Deep Logic of Marriage

Here's something I didn't know: In 1967, the United States Supreme Court, in the case of Loving v. Virginia, finally got around to striking down state laws that made it crime for people of two different races to marry.  It was not a courageous move because, at that time, of the 16 states which still had anti-miscegenation laws on the books, very few enforced them.

Thirteen years earlier, in 1948, the Supreme Court of California made a courageous decision: In Perez v. Sharp, it struck down anti-miscegenation laws under the California constitution at a time when racially discriminatory laws were the norm.

This past Thursday, that same court, in deciding In re Marriage Cases, cited Perez and held that laws forbidding same-sex marriage are forbidden under the California constitution. Just like Perez, it was a 4-3 decision. And like Perez, it was courageous.

The title of the post is ironic and refers to this quote from the NYTimes.com article:

Opponents of same-sex marriage say they are uncomfortable with the analogy to interracial marriage bans. “It’s well suited to a sound-bite culture,” said Monte Stewart, president of the Marriage Law Foundation, which supports traditional marriage.

“Sure, it works at the surface level,” Mr. Stewart continued. “But it is actually defeated by the deeper reality of marriage itself. Marriage in its deep logic has nothing to do with race and everything to do with the union of a man and a woman. To apply Perez in the genderless marriage context is actually to betray it.”

"Marriage in its deep logic has nothing to do with race" today, because of cases like Perez and Loving. Advocates of anti-miscegenation laws used the bible to justify why people of different races should not marry. The trial judge who convicted Mildred and Richard Loving wrote in his decision:

Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents. And but for the interference with His arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.

When Perez came down in 1948, you can bet people like Monte Stewart thought racial purity was an integral part of marriage's "deep logic", just as they think sexual orientation is today. And they get support for that view from people in power.

Not for much longer, I hope.

California Supreme Court Holds Same-Sex Marriage Ban Unconstitutional

In a 4-3 decision, the court held that allowing only opposite-sex couples to marry unjustly denies gay and lesbian people a fundamental right. The court's ruling goes into effect in 30 days. Opponents have prepared a referendum that will be on the ballot in November amending the California constitution to overturn the ruling. They are also asking the court to stay its ruling until then.

"...(R)etaining the designation of marriage exclusively for opposite sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise - now emphatically rejected by this state - that gay individuals and same-sex couples are in some respects "second-class citizens" who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples," the opinion authored by Chief Justice Ronald M. George said.

"Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional."

"Separate and distinct designation" means "separate but equal".  Whether or not it's overturned by the referendum, this is the correct decision. (Of course, given this year's presidential race, it is likely that turnout will be so high that it will doom the referendum.) Pdf of the 172-page decision here.

Four Years in Prison For Praising 9/11

Here's another interesting illustration of the difference between the right of free speech in Britain and the United States. Abu Izzadeen, a British man from Jamaica who converted to Islam, was given four and a half years in prison for merely expressing his views:

Bethan David, Crown Prosecution Service Counter Terrorism Division reviewing lawyer, said: "These defendants called for people to give their support to Osama bin Laden and money to the mujahedeen. They told people they should be proud of 9/11.

"It is not an offence to have negative views about Britain and its values and culture, but it is an offence to encourage acts of violence."

In America, there is a near-absolute constitutional right to express a desire that others should break the law, except when there is reason to think the speech will immediately result in violence or if spoken in connection with a conspiracy to actually commit the crime. Given that we started this country by overthrowing the then-lawful government, this isn't very surprising.

Supreme Court Allows 15-Year Sentence After Acquittal

On Monday, the United States Supreme Court declined to review this case:

Mark Hurn ... was sentenced to 18 years in prison on a drug possession conviction, which typically results in a 2-3 year sentence. He was acquitted of possessing crack cocaine, which carries a 15 year sentence. Prosecutors argued, and U.S. District Court Judge John Shabazz agreed, that Hurn should be punished for both the crack and powder cocaine offenses despite the acquittal.

This is kind of shocking. The jury's verdict is rendered meaningless. So long as they can find some charge that will stick, you can be sentenced for other crimes you are acquitted of.  This is hust another tool for prosecutors to threaten people with if they refuse to plead guilty to crimes they didn't commit.

"There's That Boy Who's Suing Jesus"

Developments in the case of a lawsuit brought against the Indian River School District, the public school system in southern Delaware that promotes Christianity and discriminated against the tiny number of Jews in the district, who had to flee:

The settlement, which was approved Tuesday, includes payments to the families that both sides would not disclose. Although the settlement resolves many complaints in the suit, against the Indian River School District, the parties are proceeding with litigation over the school board practice of beginning its sessions with prayer.

Lawyers for the plaintiffs and defendants said their clients were satisfied with the settlement. On local blogs, the anger many people felt toward the families for protesting Christian prayer at school events has flared anew.

Mona Dobrich, 41, whose family was a plaintiff in the suit, said such a furious reaction had exacted a profound toll on her family and might indicate that the settlement would alter little on the ground.

“I feel that it is a good settlement because the rules are out there,” Mrs. Dobrich said in a telephone interview, referring to new policies the board has agreed to adopt. “Do I think life is going to change in Sussex County or all the other Sussex Counties in the country? No.”

It really is a tragic, infuriating story. I know that area of Delaware really well, and the impression you get of the residents is absolutely accurate: Backwards, insular, ignorant and violent. Their religion, like their politics, is just a club to beat the nonbelievers and outsiders. I wouldn't live down there on a bet, although some of the beaches are pretty. Just don't wander too far in land, or go down out of season.

The financial settlement, which will be paid by the district’s insurer, will pay off the debt that the Dobriches accrued as they moved. The family has settled in Dover, Mrs. Dobrich said.

The Dobriches tried once to take Alex back to live in Georgetown and understood that they could not return.

“We tried to have Alex live with my sister in Georgetown,” Mrs. Dobrich said. “Alex was in the yard, and some kids came up and said, ‘There’s that boy who’s suing Jesus.’ ”

But as soon as one case is settled, a new one pops up:

Our 10-year-old sister, Amani, is in the fifth grade at Lord Baltimore, a public elementary school in Ocean View. Last Tuesday, her teacher “taught” her class that Barack Obama is a Muslim and that she would not vote for him because he does not swear on the Bible, nor recite the Pledge of Allegiance. Her teacher told the class that she is a Republican and that Barack Obama “believes in different things and is scary.” ...

We are American Muslim kids. We love our country. We feel that kids need to be taught the truth in school. We believe that what is going on in our schools is un-American and scary. Kids are being taught hatred and fear of Muslims. Our sister was badly hurt by what was said in her classroom.

Each of us has experienced similar prejudice in our classrooms in three different schools. We would like for people to know that we believe in peace and respect for everyone. We are your neighbors and this is our home, too. We pray for understanding and an end to hate. Please stand with us.

Fatima and Basima Abdelsalam
Bethany Beach

Good luck, kids. Pack a bag, just in case, though.

Why They Build Prisons

Some knucklehead, already looking at 71 years in jail for armed robbery, decided to add on a few more by trying to rape his own defense attorney inside the federal courthouse in Philly:

Before their meeting with federal authorities, [Kareem] Millhouse and his attorney were given a few moments to speak privately in an interview room, according to information from the U.S. Attorney's Office in New Jersey, which handled the prosecution.

Once alone, Millhouse leaned toward his lawyer and told her that he would cut her throat if she screamed, and then showed her a razor blade.

Millhouse, federal prosecutors said, went on to tell the woman that he had not had sex in a long time and wanted to have it with her, and he also wanted her to be able to "leave alive."

Millhouse then lunged at her, and she screamed and tried to run from him. He grabbed her and threw her over a table, but several law-enforcement officials heard the screams and rushed into the room to subdue him.

Ah, the glamour of the legal world. I am so glad I didn't go work for the public defender's office.

The Changing Definition of Marriage

upyernoz with an awesome point:

the legal definition of marriage was radically changed in the 19th century. (see one of my earliest posts on the topic) before that, married women did not exist as legal persons; they couldn't even own property. then, through a series of legal reforms, their traditional legal status was updated. these changes changed the legal definition of "marriage" in the process. the common law definition was the eradication of the woman as a legal entity, subsuming their rights into the husband. once married women started gaining their own independent rights, that definition was no longer tenable, so it was dropped in favor of a different definition.

In other words, for hundreds of years, the definition of marriage could be described as "one flesh" - an adult woman became the property of her husband. The husband was legally responsible for his wife's actions, and had corresponding legal authority over her. As if she were a child.  And when we realized that was unjust, we extended the basic human right of personhood and self-determination to women by changing the definition of marriage. Just as we should change it now, to extend that basic human right to gay and lesbian people.

The Incredible Shrinking Rule of Law

So Scalia, Roberts and friends on the Supreme Court want to do away with facial challenges:

With increasing frequency, the court's conservative wing has been chipping away at facial challenges (the better to bar litigation), and today Scalia takes out a sledgehammer: "I mean, every facial challenge is an immense dictum on the part of this court, isn't it?" He goes on to characterize all facial challenges as the court "sitting back and looking at the ceiling and saying, oh, we can envision not the case before us, but other cases …"

Hey, why stop there? By the same logic, the outcome of as-applied challenges should only be binding on the particular parties to the case. So, if Mary Jones sues to overturn an anti-abortion law as applied to her, then Jane Smith shouldn't be able to use that case to argue that the law doesn't apply to her. Sure, it's the same law, and they're both pregnant, but other than that there are significant differences between the two cases. First of all, they have different names. Secondly, Mary is married and Jane is a slut. Third, they live in different states, are different ages, and have different jobs. They're different cases, and each one needs to be litigated, to the Supreme Court if necessary. To strike down that law with respect to all similarly situated persons as Mary is "an immense dictum", as Scalia says, because who is to say what's similar enough? The Supreme Court, that's who, preferably after long and expensive litigation.

The rule of law is predicated on legal principles being prospectively applied by citizens and the government. Individuals and law enforcement officers do every day what the right-wingers on the Supreme Court here are disavowing: Imagine what is likely to happen and test it against general principles of law. Per Scalia's logic, you can't know if something is illegal until you're arrested for it.

This is stupid and feckless, but that goes for all right-wing legal theory.

Things I Learn in Lawyer Class!

So, like upyernoz, I spent part of the end of the year doing an online Continuing Legal Education class (although, unlike him, I am careful not to screw up and have to watch the whole thing twice).  But because I am also a much bigger procrastinator than him, in addition to watching a prerecorded class on the internet I also had to visit the local CLE facility where for four hours we ... watched a prerecorded class on the internet. (The second one was more expensive though, because they give you bagels and coffee.) 

Now, during the second internet video, the panel showed ... internet videos. Meta, dude. But these were funny. I give you "How to handle a tough deposition question" (my fav):

And "old lawyer fight":

"Boy!"

A Republic, If You Can Keep It

Andrew Cohen:

We know after this atrocious year in the law that we have the government we deserve. Did you also know we have the legal coverage we deserve? Despite monumental legal developments which shook the justice system to its foundation, only some of which I’ve had the space to include here, the airwaves and the Internet were filled in 2007 with breathless coverage of the legal machinations of skanky starlets (Lohan and Spears) or dismal reality actresses (Smith) or people like Simpson and Hilton who now are famous (or infamous) precisely because they find themselves in legal jeopardy so often.

The hours spent covering these insipid people were hours unspent exploring the mighty ways in which the law has changed since September 11, 2001. They were hours unspent examining the death penalty in America and how its ineffective and often scandalous enforcement has led at least one state, New Jersey, to decide that 2007 would be the year to end capital punishment there. They were hours unspent figuring out who is the next Stimson or Gonzales or Padilla. They were hours unspent on covering the courts across the country, and the Supreme Court, and the judiciary committees in both houses of Congress.

In the carefree summer of 2001, all anyone wanted to talk about was poor Chandra Levy. Then the Twin Towers fell. The year we just endured proves that the Constitution has changed a lot since then. It also proved, unfortunately, that we haven’t.

Teenage Lesbian Gives Fundamentalist Teacher a First Amendment Lesson

Good job, Beth:

Bethany Laccone, a 17-year-old senior from Portsmouth, Virginia, takes a hotel management class every morning at I.C. Norcom High School before returning to her regular school for the rest of her classes. An out lesbian for over two years, Laccone sometimes wears a t-shirt which bears an image of two overlapping female gender symbols. On December 10, 2007, Laccone was pulled out of class at Norcom High by a teacher who said she shouldn't be wearing the shirt at school and then sent her to the assistant principal's office. The assistant principal and the teacher then told Laccone that the shirt violated a section of the school dress code that bans "bawdy, salacious or sexually suggestive messages." In a later meeting with Laccone's father, the assistant principal said that he was upholding the censorship, and added that the teacher is "very conservative" and claimed she was so upset by the t-shirt that it "interfered with her ability to teach."

In a demand letter sent [on December 20] to I.C. Norcom High School officials, the ACLU demanded that any mention of the censorship be removed from Laccone's student record, that the school guarantee it would not illegally censor Laccone or other students in the future, and that the school apologize to Laccone for its actions.

The ACLU of Virginia and the national ACLU Lesbian Gay Bisexual Transgender Project are working together in handling Laccone's complaint.

She looks like she doesn't take a lot of shit from people, doesn't she? 

And the ACLU gets results:

On Friday [December 21], Norcom Principal Lynn Briley said the school would comply.

"Yes, we did make a mistake," Briley told The Virginian-Pilot newspaper of Norfolk.

Briley agreed that Laccone had been censored, but said no note had been placed in her file. She said she would apologize to Laccone and try to meet the group's other demands.

Give to the ACLU.

(Crossposted at Gloria Brame's.)

More Good News From California Courts

Like the shopping mall free-speech case, another example of California courts stepping in to prevent the abuse of private power:

California health insurers have a duty to check the accuracy of applications for coverage before issuing policies -- and should not wait until patients run up big medical bills, a state appeals court ruled Monday.

The court also said insurers could not cancel a medical policy unless they showed that the policyholder willfully misrepresented his health or that the company had investigated the application before it issued coverage.

And a pretty balanced outcome, too, in my opinion: By leaving in an exception for willful misrepresentation, insurance companies can still avoid paying out to actual fraudsters rather than stiffing cancer patients who, say, wrote down a detail incorrectly on the application.

(Via Duncan.)

California Supreme Court Protects Right to Free Speech at Shopping Malls

This is interesting:

A sharply divided [California] state Supreme Court ruled yesterday that shopping malls can't ban protesters from calling for boycotts of mall businesses.

The 4-3 ruling came in a case dating to 1998 involving the Fashion Valley mall and a labor union representing press workers at The San Diego Union-Tribune. The court majority said that free-speech rights – as interpreted under the state Constitution and a 1979 state Supreme Court case – also extend to the private property of shopping malls.

“Urging customers to boycott a store lies at the core of the right to free speech,” Associate Justice Carlos Moreno wrote for the majority.

The dissent made the argument you'd expect:

In a strong dissent, Associate Justice Ming Chin criticized the ruling and said the court should have overturned the 1979 case that extended free-speech rights to shopping malls.

“Private property should be treated as private property, not as a public free speech zone,” Chin wrote.

The core principle of almost all civil liberties law is that individual rights such as free speech and due process apply to the government and not private persons.* That means you have a legal right to stand on your soapbox in a public park, but not on my front lawn. This principle is one that has worked well for most of the country's history, but it started to break down when traditionally public space started becoming privatized. There are two main areas where this has happened: the replacement of local government with homeowners associations, and the death of the "public square" concurrent with the rise of malls and shopping centers. Those two changes meant that many people went from spending most of their day in public spaces - where they have inalienable rights - to spending most or all of their day in private or privately-controlled spaces, where as a practical matter they have no rights.

Whether or not you see this as a problem is purely ideological. If you regard private property as sacrosanct, then you are likely to believe that unequal distributions of power among private actors never rise to a constitutionally cognizable problem. If you regard property rights as just one of a bundle of rights that are sometimes in tension, then you are more likely to think that private actors taking over traditionally governmental roles may require that individual rights be extended to those situations.

The Supreme Court of the United States dithered over this question in the 60s before coming down firmly on the side of capital in the 1970s. The Court's decisions strongly suggest that outside of areas such as "education, fire and police protection, and tax collection", the United States Constitution allows private owners to do what they like.** At the same time, though, the Court upheld the 1979 California Supreme Court case*** mentioned in the article, which held that under the California Constitution, free speech and associational rights extend to shopping mall property. That is to say, the Court likes property rights, but not so strongly that it precluded a state from holding the opposite position.

Under the rhetoric of federalism, of course, this is exactly what is supposed to happen: individual states are free to grant their citizens more rights than than those protected by the federal constitution. But I predict that conservatives will abandon their usual pose to denounce this decision because federalism only works for them when it achieves policy outcomes that they like.

* The only exception I can think of is the 13th Amendment's ban on slavery, which applies to governments and individuals alike.

** John Nowak and Ronald Rotunda, Constitutional Law, 7th Ed., sec. 12.2, quoting Flagg Bros., Inc. v. Brooks, 463 U.S. 149, 163-164, 98 S.Ct. 1729, 1737 (1978), Rehnquist, J.

*** PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035 (1980).

Two Million Pages of Federal Case Law Go Online For Free

Good news for anyone wanting to look up cases:

Public.Resource.Org and Fastcase, Inc. announced today that they will release a large and free archive of federal case law, including all Courts of Appeals decisions from 1950 to the present and all Supreme Court decisions since 1754. The archive will be public domain and usable by anyone for any purpose. ...

Public.Resource.Org is represented by the Electronic Frontier Foundation in this transaction. The cases will be marked with a new Creative Commons mark—CC-Ø—that signals that there are no copyrights or other related rights attached to the content.

Good stuff.

(Via Cory Doctorow at Boing Boing.)

Things That Make Me Go, "Wha??"

Typos in briefs submitted to the United States Supreme Court.

Genarlow Wilson Ordered Freed

After spending two years in jail for what is now a misdemeanor, former honors student Genarlow Wilson has been ordered freed by the Georgia Supreme Court:

The court ruled 4-3 that Genarlow Wilson's 10-year sentence was cruel and unusual punishment. ...

Wilson, 21, was convicted of aggravated child molestation following a 2003 New Year's Eve party at a Douglas County hotel room where he was videotaped having oral sex with a 15-year-old girl. He was 17 at the time. ...

The 1995 law Wilson violated was changed in 2006 to make oral sex between teens close in age a misdemeanor, similar to the law regarding teen sexual intercourse. But the state Supreme Court later upheld a lower court's ruling which said that the 2006 law could not be applied retroactively.

Chief Justice Leah Ward Sears wrote in the majority opinion that the changes in the law "represent a seismic shift in the legislature's view of the gravity of oral sex between two willing teenage participants."

Sears wrote that the severe punishment makes "no measurable contribution to acceptable goals of punishment" and that Wilson's crime did not rise to the "level of adults who prey on children."

That's justice.

"This is the South. We Have Different Laws Down Here."

One thing I never understand about libertarians is how they focus on how, say, environmental regulations enslave us all! and don't seem to give a shit about real-life, obvious infringements of freedom. Is it because they only care when it affects corporations? Or maybe they only care when it affects white people, unlike this story about reporting while black:

“What’s The New York Times doing down here?” asked an incredulous black man. He and about a dozen other men were standing in front of a clapboard house in Salisbury[, North Carolina]. I observed several drug sales there within minutes of arriving.

“Man, you a cop,” said another. “Hey, this guy’s a cop!”

“You’ve got me wrong,” I said trying to sound casual as the men looked at me warily. I started to pull my press identification out of my wallet. “I’m a reporter. I’m just trying to talk to you about your neighborhood.”

In the distance I heard neighborhood lookouts calling: “Five-O! Five-O!” — a universal code in American ghettos for the approaching police. I thought they were talking about me, but thought again as three police cars skidded to a stop in front of us.

A tall white police officer got out of his car and ordered me toward him. Two other police officers, a white woman and a black man, stood outside of their cars nearby. I complied. Without so much as a question, the officer shoved my face down on the sheet metal and cuffed me so tightly that my fingertips tingled.

“They’re on too tight!” I protested.

“They’re not meant for comfort,” he replied.

...

After a quick check for outstanding warrants, the handcuffs were unlocked and my wallet returned without apology or explanation beyond their implication that my approaching young black men on a public sidewalk was somehow flouting the law.

“This is a dangerous area,” the officer told me. “You can’t just stand out here. We have ordinances.”

“This is America,” I said angrily, in that moment supremely unconcerned about whether this was standard police procedure or a useful law enforcement tool or whatever anybody else wanted to call it. “I have a right to talk to anyone I like, wherever I like.”

The female officer trumped my naïve soliloquy, though: “Sir, this is the South. We have different laws down here.”

Then we get the comedy:

I tried to appeal to the African-American officer out of some sense of solidarity.

“This is bad area,” he told me. “We have to protect ourselves out here.”

As the police drove away, I turned again to my would-be interview subjects. Surely now they believed I was a reporter.

I found their skepticism had only deepened.

“Man, you know what would have happened to one of us if we talked to them that way?” said one disbelieving man as he walked away from me and my blank notebook. “We’d be in jail right now.”

Another one of the features of libertarian ideology that I find ridiculous is the idea that local government is necessarily more freedom-loving than state government, and state government better than the federal government. When in fact it's the state and local governments that are usually the most freedom-depriving, captured by faction and not subject to scrutiny by anything like a functioning press. Until some reporter from a powerful institution like the NYTimes decides to show up, and then it's an issue for 5 minutes, maybe 6. Without that amplification, no one ever even hears about it.

(Via P6.)

Nebraska Lawmaker Sues God

Hilarious:

State Senator Ernie Chambers is suing God. He says it to prove a point about frivolous lawsuits.

Chambers says senators periodically have offered bills prohibiting the filing of certain types of suits. He says his main objection is the constitution requires that the doors to the courthouse be open to all. Chambers said, "Thus anybody can file a lawsuit against anybody - even God."

Chambers said he decided to file this lawsuit after a suit was filed in early September in federal court against Lancaster County Judge Jeffre Cheuvront. He's the judge who was hearing a sexual assault case, where the woman wants to use the words "rape and victim" during her testimony.

Chambers lawsuit, which was filed on Friday in Douglas County Court, seeks a permanent injunction ordering God to cease certain harmful activities and the making of terroristic threats.

The lawsuit admits God goes by all sorts of alias, names, titles and designations and it also recognizes the fact that the defendant is “Omnipresent”.

In the lawsuit Chambers says he’s tried to contact God numerous times, “Plaintiff, despite reasonable efforts to effectuate personal service upon Defendant (“Come out, come out, wherever you are”) has been unable to do so.”

Funny. Lest Sen. Chambers be misinterpreted, what's he's trying to show here is that constitutionally anyone can sue anyone else for anything, and then the courts go from there to sort out fact from fiction. And that's a good thing, because that's the only way you can enforce your legal rights. The court's whole job is to listen to what you have to say (hey, that's why it's called a "hearing") before throwing you out on your ass.

Good for Sen. Chambers.

(Via Faithfully Liberal.)

Update 9/18/07:

Damn. It turns out I misunderstood Sen. Chambers. He's actually upset by the lawsuit filed buy the victim in the rape case:

Chambers said the lawsuit was triggered by a federal suit filed against a judge who recently barred words such as “rape” and “victim” from a sexual assault trial.

The accuser in the criminal case, Tory Bowen, sued Lancaster District Judge Jeffre Cheuvront, claiming that he violated her free speech rights.

Chambers said Bowen’s lawsuit is inappropriate because the Nebraska Supreme Court has already considered the case and federal courts follow the decisions of state supreme courts on state matters.

Gonzales Roundup

Fred Clark:

If Attorney General Alberto Gonzales says he resigns, can we believe him?

Related paradox: the likely forthcoming, "I Don't Recall": A Memoir.

One more: Can (soon-to-be-former) Attorney General Alberto Gonzales make a rock so big that even he can't pretend it isn't there?

The only person who is a bigger liar is his boss. I know, I listened to his remarks about the resignation: "Alberto Gonzales is a principled man."

Hilzoy:

Alberto Gonzales helped to destroy the good name of our country. He wrote the legal opinions that allowed the administration to disregard laws it did not wish to follow, and in so doing did real damage to the structure of our government and to the separation of powers. He took a department that was, by all accounts, superb, and trashed it. And by being so transparently interested only in advancing the interests of George Bush at the expense of the laws he swore to uphold, the Constitution, and the national interest, he deepened cynicism about government at a time when we badly needed leaders worthy of our trust and our confidence.

Goodbye and good riddance.

Shrill. Like it.

Atrios:

I'm sure we can still kick him around after he's gone.

Jack Balkin:

Mr. Gonzales ... was a disgrace to the office. There are many roles he could have competently filled-- and did fill-- in his career. The Nation's chief law enforcement officer was not one of them. He abused his office for political gain, repeatedly misled Congress under oath --and probably out and out lied on more than one occasion-- and turned a once proud institution of government into an object of deep suspicion.

No one person can cure what ails the Justice Department these days. It will take determined leadership and reform by a large number of individuals. I have no confidence that the current Administration will put the right people in place. We may have to wait for a new Administration, and even then to fix what Alberto Gonzales did to the United States Department of Justice may take many years.

Someone in Balkin's comments notices that the effective date of the resignation is September 17th - appropriately enough, Constitution Day.

Lizardbreath at Unfogged:

Not that whoever replaces him is likely to be any better.

"I have selected her as my nominee for Attorney General because Ann Coulter has shown that she will uphold the high standards of integrity and professionalism that Alberto Gonzales set for the office."

upyernoz:

delayed resignations send a very different message than a quick one. rather than saying "this guy's at fault and takes responsibility for it", a resignation after the scandal has died down sends no message of accountability. indeed, it seems to send exactly the opposite message. by leaving a good seven months after his first name became "embattled", gonzales seems to be saying "fuck you" to all the people who called for him to go months ago. "yes, i'm ready to go," he seems to say, "i just didn't want to give you the satisfaction."

arguably the rumsfeld resignation, made years after abu ghraib, and the rove resignation, made years after he was tarred by the plame investigation and months after his failure in the 2006 election, were also fuck you resignations. last year i noted that resignation didn't seem to be in the administration's scandal-management playbook because they didn't want to admit responsibility for things. in a sense the long delayed resignation is another attempt to deny the existence of the scandal.

I think "Fuck you" will be the way history summarizes this Administration.

Needlenose wonders why, why, why:

The race is on to find the most cynical (and hence, most probably accurate) interpretation for the sudden resignation of Alberto Gonzales as attorney general.  Laura Rozen serves up Jack Balkin's collected conventional-wisdom challenges that everyone is trying to scheme around, focused on the problems of getting a new AG confirmed by a Democratic Senate.

My take is simple. From a marketing point of view, you don't introduce new products (in this case, a new A.G.) in August. So the stonewall.  But the GOP, already facing disaster in 2008, needed Gonzales gone to deprive the Democrats of a  campaign issue. So I bet Congressional Republicans told Bush to fire him or they would agree with the Democrats to impeach.

Thoreau at Unqualified Offerings:

Somehow tar and feathers just don’t feel sufficient.  I want to call for something more…substantial…um, I mean “enhanced.”  (Gotta stay on top of today’s DOJ terminology.)  But calling for an “enhanced” approach would make me just as much of a bloody thug as him, so I can’t go there.  I have no desire to burn in hell alongside Gonzales.  But I do want to inflict some sort of punishment.  So we have to stick to stuff that’s creative but not “enhanced.”

All I’ve got right now is that we’ll tie him to a chair and force him to watch Paris Hilton opining on theoretical physics.  Or maybe we’ll make him eat all his meals at McDonald’s.  That would piss me off half-way through the first meal.

Wait, I’ve got it:  We’ll make him change the diapers of each and every LGF poster.  And to make sure that those diapers are perpetually full, we’ll put them on a flight with a Sikh.  Yes, I realize that Sikhs are neither Muslim nor Arab, but LGF posters don’t know that.

I am sure there is a lot more worthwhile stuff out there, but enough for now.

Update:

Mike Dorf:

Alberto Gonzales Resigns to Spend More Time With Karl Rove's Family
That's what I would write if I wrote for The Onion.  But I don't.

The Center for American Progress:

Who could have imagined that things could get worse [than under Ashcroft]?

Yet Ashcroft’s successor often seemed more a White House functionary than the attorney general of the United States. Alberto Gonzales was ever-willing to subordinate the needs of justice to the demands of his political masters—crossing lines that even his predecessor had refused to cross. His cavalier disregard for the rule of law and his tenuous grasp of the responsibilities of his office were an embarrassment to the Department of Justice and an insult to the American people.

Now Gonzales is gone, but the department he headed lies in ruins—its morale shattered and its credibility at an all-time low. If the damage is to be repaired, there must be not only a change in leadership but a change of heart. If Americans are to regain their confidence in the administration of justice, we must have an attorney general of unimpeachable integrity who understands his (or her) duty to uphold the Constitution and is prepared to carry it out.

My Life in the Law

I've been out of law school for over ten years, and to date the single best piece of advice I have given a client is the following:

Use 70% isopropyl rubbing alcohol to remove built-up soap scum.

I can just coast on my awesome reputation now.

The One Hundred and Twenty Eighty Day Law

NYTimes:

Under pressure from President Bush, the House gave final approval Saturday to changes in a terrorism surveillance program, despite serious objections from many Democrats about the scope of the executive branch’s new eavesdropping power. ...

The House Democratic leadership had severe reservations about the proposal and an overwhelming majority of Democrats opposed it. Speaker Nancy Pelosi said the measure “does violence to the Constitution of the United States.”

Yeah, so, why did the Dems cave on this?

But with the Senate already in recess, Democrats confronted the choice of allowing the administration’s bill to reach the floor and be approved mainly by Republicans or letting it die.

If it had stalled, that would have left Democratic lawmakers, long anxious about appearing weak on national security issues, facing an August spent fending off charges from Republicans that they had left Americans exposed to threats.

The amendment sunsets in one hundred and twenty days:

Senior House Democratic leaders said they were resigned to the measure, which will be in force for six months. But they said they would not wait that long before trying to come up with a more acceptable, permanent change in the Foreign Intelligence Surveillance Act.

“There is no way we are ever going to wait six months,” said Representative Rahm Emanuel of Illinois, chairman of the House Democratic Caucus.

Okay, so it's not a good development. But the Dems seem like they have good political reasons not to go into recess after voting this down, especially given the craven news media. (Imagine: "Up next on the Situation Room: Are the Democrats cowards or simply traitors?" Every day until after Labor Day.) And it expires in six months even if they do nothing and clearly, they're going to address it.

Nevertheless, this is another opportunity for people to TOTALLY FREAK OUT:

Avedon Carol calls it "Inexplicable" and says: "Outside of the Beltway, nearly everyone ranges from outraged to flabbergasted to outraged and flabbergasted." Meteor Blades: "The Senate has surrendered to Mister Bush on domestic spying, yielding ignominiously to the White House’s demands...." (MB at least acknowledges that the law sunsets in six months, but characterizes it as time Congress will use to make the change permanent.) John Cole: "Grow a spine, you cowards." Thoreau at Unqualified Offerings: "The East Germany Restoration Act passed 227-183, with 41 Democrats jumping ship to fellate Dick Cheney."

Even Duncan and Digby - no freakouters - are just puzzled. Scott Lemiuex: "The six-month sunset period is, of course, a joke; if they're willing to sell out now -- after Bush having stuck his thumb in their eye and reneging on a deal, yet! -- they're sure not going to develop any more backbone-like properties in an election year." Glenn Greenwald asks, "The cycle is just going to repeat itself 180 days from now. Why would it be different?"  Which is a fair question.  The answer, of course, is that when this comes back up (a) we will be that much further into the campaign season, which focuses the politicians' minds somewhat, (b) it seems a goodly number of Dems in the House feel like they were railroaded, including the Speaker, and (c) liberal bloggers are going to be kicking the Congressional Dems like a rented mule. On who should we be focused? 

Democrats facing reelection next year in conservative districts helped propel the bill to a quick approval.

There you go. Stop freaking out and get to work.

Update: In a mistake that should in no way undermine the awesome persuasiveness of my analytical ability, I apparently thought six months was 120 days. My defense is that I picked up the 120 number from Nancy Pelosi's blog.  Why I didn't realize immediately that 6 months (which is what the bill says and is reported everywhere else) and 120 days are not the same thing is ... uh ... one of those top secret thingies under FISA. Yeah, that's it.

On Being Colorblind or Just Blind

Mike Dorf:

Liberals value integration as a good in itself because liberals, like conservatives, value color-blindness, albeit in a different sense. Conservatives believe that GOVERNMENT decision-makers should always or almost always be color-blind in the sense that government should not make decisions that turn on race. Liberals believe that INDIVIDUALS should be color-blind but see ubiquitous evidence that they are not. In deciding where to live, with whom to socialize and all sorts of other matters, individuals make decisions based on race. The conservatives don't deny this, but they call the phenomenon "societal discrimination" or "voluntary segregation," and conclude that the government cannot take any race-conscious measures to remedy it. Liberals, by contrast, see the harms that result from numerous individual private race-based decisions as worse than the harms that result from race-based decisions by the government to remedy these private decisions. Meanwhile, the conservatives deny that such race-based government action is a "remedy" at all, because they deny that private race-based decision making is (at least constitutionally speaking) a harm.

I'd go a step farther and say that most conservatives see "voluntary segregation" as a social good, because of the label "voluntary". It's sort of an economic argument coupled with a constitutional rights argument: There is an "optimal" level of racial segregation which is mediated by the private choices people make as part of the freedom of association. In this view, anything the government does to reverse societal discrimination (that doesn't violate other laws, like against discrimination in housing or employment) is not just useless, but actively harmful. I would call this the "weak libertarian" view. There is also a "strong libertarian" view held by a few conservatives that all laws against private discrimination are constitutionally harmful - including laws against discrimination in housing, employment, public accommodations or lending - because they burden the freedom of association or the freedom of speech.

Dorf goes on to say:

[W]hat strikes me as interesting about this example is how the underlying value is the same: color-blindness.

I just don't see conservatives valuing color-blindness at all. How could they possibly value it, when they deny even the possibility that correcting private discrimination could rise to the level of a compelling state interest? They are stuck with the 14th Amendment, that's all, and they are trying to interpret it as narrowly as possible.  If they do claim to value societal color-blindness, it's just a rhetorical device to help win the argument against beneficial race-conscious laws, like affirmative action.

I do agree with Dorf's conclusion:

The attachment to societal color-blindness explains what liberals value in integration but it doesn't explain why they (we) pursue it in the face of evidence that the pursuit has been a failure. And on this point, I think the best answer is simply that many of us believe that [Derrick] Bell---who writes about the "permanence of racism"---is unduly pessimistic. American attitudes about race today are hardly a model of egalitarianism. Revealed preferences are even worse. But both represent a marked improvement over the not-all-that-distant past. So while Bell and others are right to pursue whatever methods of education that work within de facto segregated schools, we conventional liberals are also entitled to think that it's too early to give up on the goals of integration.

Right. When I was a kid, racist rednecks with baseball bats on my street would chase out any black man who had the misfortune to wander into the neighborhood. Nowadays, their kids or grandkids are not only unlikely to hold similar views, but probably truly reject them.

How did we achieve this "marked improvement over the not-all-that-distant past"? By society adopting a clear message that racial discrimination - whether private or public - is simply morally wrong and unamerican. Our laws are part of that message. I can see why some people might grow cynical with race-conscious integration efforts, but abandoning them means tacitly accepting the conservative premise that discrimination is acceptable, at least.

U.S. District Judge Glenn Reynolds

Unlike Blue Texan, I think this would be fun. Imagine the scene:

Senator Biden:    Professor Reynolds, it's remarkable. While many nominations for federal judgeships cause the public to speak out, I've never seen anything like this. We've received over 11 million emails in support of your nomination.

Professor Reynolds:    Heh. Indeed?

Sen. Biden:    Yes. We've also received 31 million emails in opposition, some of which are quite detailed. My staff and I have culled through these and I have brought with me a list of questions for you based on the better-documented of them.

Prof. Reynolds: Ulp.

Sen. Biden:    The first question, really the first ten questions, are prompted by a Professor Duncan Black ...

After two days of questioning, the nomination would be withdrawn, and everyone in the country who follows such things will know terms like "disinglennuous" and who uses phrases like "more rubble, less trouble".

Federal Judge Strikes Down Hazleton, PA Anti-Immigrant Ordinance

From the decision by Judge James Munley, quoted at Speaking Freely, the ACLU of PA's blog:

    The genius of our Constitution is that it provides rights even to those who evoke the least sympathy from the general public. In that way, all in this nation can be confident of equal justice under its laws. Hazleton, in its zeal to control the presence of a group deemed undesirable, violated the rights of such people, as well as others within the community. Since the United States Constitution protects even the disfavored, the ordinances cannot be enforced.

Feminism, Privilege and Judge Dolores Sloviter

Okay, this will be of interest just to lawyers. Just Philadelphia lawyers, probably.  There's a new book out:

Saira Rao, 33, graduate of New York University Law School, daughter of Indian American parents, is a former news producer for Washington's CBS affiliate and Miami's Fox News station. She held a prestigious clerkship from 2002 to 2003 with Judge [Dolores K.] Sloviter, 75, of the U.S. Court of Appeals for the Third Circuit in Philadelphia.

Rao, who grew up in Richmond, Va., has just published Chambermaid (Grove, $22), a highly entertaining, often insightful, frequently sarcastic and at times extremely nasty first novel about folks at the Third Circuit.

It's narrated by Sheila Raj, an Indian American graduate of Columbia Law School, and former TV news producer from Reston, Va., who serves a year as law clerk to famously liberal Judge Helga Friedman of the Third Circuit. It depicts Judge Friedman as a "sociopathic, homicidal, bipolar jurist" and "toxic bitch." ...

Raj describes Friedman as "definitely insane," the "craziest person" at the federal courthouse at Sixth and Market, a "robed rascal who wouldn't hesitate blowing up anybody who failed to give her due respect."

Okay, if you don't know Sloviter is ... difficult, you don't work in the Third Circuit. She yells at clerks. She gets pissed off if someone leaves an F.3rd volume unshelved. She's a sweet little old lady in public and in chambers she will not hesitate to cut you down to size.  Okay?

The problems here are threefold:

1. Sloviter's personality wouldn't even merit a mention if she were a man. He'd be called tough and demanding. She's called a bitch.
2. Sloviter was the first woman ever to be appointed to the Third Circuit. Midge Rendell and others can be all sweetness and light because of what Dolores Sloviter put up with back in the 70s. Let's give the women pioneers a break on being nice-nice when they had to be hard as rocks to deal with the all-male culture back in the day, shall we?  And you know what I especially don't want to hear about? I don't want to hear complaints from some 30-something female lawyer who got a clerkship with then-Chief Judge Sloviter, a great resume item, and who probably hasn't experienced one one-hundredth of the opposition in her career because of her gender.
3. Highly pampered, privileged lawyers from places like NYU and Penn walk into their first jobs - like clerkships - and expect people to kiss their asses. But you know what? That's not how it fucking works. Especially in litigation. You can't take being yelled at? Go into tax.

Apparently, Rao is aware enough of this last problem to mention it - and paint herself as some kind of crusader:

If Friedman is both a witch and a word that rhymes with it, Sheila Raj gives the judge a run for her money. Late in the book, Sheila lies to the ACLU about her experience with Friedman to get a post-clerkship job.

Rao agrees that Sheila Raj is over the top, but makes no apologies for Chambermaid. Chatting at a Greek restaurant in Manhattan, she stresses the serious impetus for her novel: outrage that federal judges aren't held accountable for behavior toward coworkers, and anger that prospective clerks can't get negative information about federal judges because law schools fear the judges.

Dude, please. You can't get negative information about federal judges? You have heard of the internet, right? And no one at NYU ever worked for Sloviter before?

"I actually just got pissed off," said Rao, who left her New York law firm, Cleary Gottlieb, in November when the subject of her book became known, and, she said, the firm made her feel unwelcome.

Aww, poor baby. Cleary found out she likes to tell tales about people above her who she has personality conflicts with, so they threw her out on her ass. Big fucking shock.  Cleary's in front of the Third Circuit all the time. Good luck finding another big firm job. Hope that book does well, because your legal career is about done.

"I understand why law clerks can't talk about case deliberations," she said. "But why can't law clerks talk about the personalities, the cultural aspects, of being a clerk? Why is there a huge blanket of silence over the third branch of our federal government? . . . I just became obsessed with this idea."

Yeah, you're obsessed with your petty grievances. A clerkship is a year. I bet Sloviter wrote her a good recommendation, too. You know, it's unsurprising when you consider Rao worked at local news stations before law school. Her martyr pose is the kind of shallow, self-serving attempt at vindication you'd expect from some local news program.

Update 7/25/07: So, I am informed by someone who knows that Rao's book has already been translated into 17 languages and she's sold the movie rights; i.e., she got paid very well for her bullshit.  Well, good for her.  Writers, even whiny-ass titty-baby writers, who write well should get paid. I hope it's enough to keep her in the style to which she's become accustomed; NYC Big Law outfits such as Cleary paid around $200,000 in 2006 for a mid-level associate like Rao before she got canned. You know what a federal appellate court judge, even one with almost 30 years on the bench, made that year? $175,100.

Here's my assignment for any NYTimes.com Style section writer: First The Devil Wears Prada, now this. Why do book publishers have it in for powerful women?

Update: Um, maybe she's not such a good writer after all:

The book is an abomination, one of the worst novels I have ever read, both artistically and morally. The affected style, which runs the gamut from “cutesy” to “bench memo,” would be forgivable if the substance weren’t so dreadful. ...

Helga Friedman is a tragic figure, a top-notch judge whose body is breaking down, increasingly alone, and tormented at every turn by a narrator intent on stripping every shred of dignity from her. Why do we need disgusted descriptions of this poor woman’s dental bridge, or her orthotic shoes, or her hairbun, or the sight of her half-clothed body, or her husband’s underwear? Chambermaid invites the reader to see a human being as physically and spiritually ugly—and then to laugh. By the end, the only humane response is to turn and walk away. Perhaps this is the response Rao wishes her readers to have, but I doubt it.

Don't Say "Bush"

You know things are bad for Bush when lawyers don't want his name mentioned in front of a Delaware County jury:

Apparently President George W. Bush is now so unpopular that some lawyers believe the mere mention of his name in front of a jury could tip the scales against them.

Attorneys Michael P. Laffey and Robert P. DiDomenicis of Holsten & Associates in Media, Pa., are defending Upper Darby Township, Pa., in a civil rights suit brought by Harold Lischner, an 82-year-old doctor who claims he was falsely arrested for displaying an anti-war sign at a Bush campaign event in September 2003.

With the case set to go to trial on July 23, the defense lawyers recently filed a flurry of motions, including one that asked Eastern District of Pennsylvania Judge Gene E.K. Pratter to prohibit the plaintiff from mentioning Bush's name.

The motion in Lischner v. Upper Darby Township said that according to the latest Newsweek poll, Bush has "the worst approval rating of an American president in a generation," and that 62 percent of Americans believe that Bush's handling of the war in Iraq shows that he is "stubborn and unwilling to admit his mistakes."

Laffey and DiDomenicis argued that "the identity of George W. Bush has no relevance to plaintiff's claim and should not be admitted."

Any "probative value" of Bush's identity, they argued, "is substantially outweighed by the danger of unfair prejudice to defendant."

Bush's identity, they argued, "in and of itself, presents the danger that the jury will favor plaintiff."

As a result, the defense lawyers said, "it will be sufficient for plaintiff to testify that he displayed a sign in opposition of a 'presidential candidate.'"

That's just funny.

The plaintiff, Mr. Lischner, is represented by David Rudovsky and Jonathan H. Feinberg of Kairys Rudovsky Messing & Feinberg. Rudovsky is a giant in civil rights law, and the judge was wise to agree with him:

In civil rights suits, the plaintiff's team argued, it is an "accepted principle" that the plaintiff "must be given leeway to provide the jury with narrative background of the case."

In Lischner's case, they argued, the First Amendment, the message on his sign, and the "target" of his message -- Bush -- are "essential to the proof of Dr. Lischner's damages."

Now [Judge Gene E.K.] Pratter has sided with the plaintiffs lawyers, saying "the court disagrees that what Upper Darby proposes is a viable approach."

Pratter found that the message on Lischner's sign and Bush's identity, as well as the circumstances surrounding his visit -- including the war in Iraq and Bush's bid for re-election -- are "relevant to the determination of probable cause and to the adequacy of Upper Darby's training and policies."

All relevant evidence is "generally admissible," Pratter said, and "the president's identity and Dr. Lischner's opposition to the war in Iraq -- presumably as evidenced by the text on his sign -- are relevant because they are part of the circumstances weighing on the probable cause analysis conducted by Officer [Michael] Kehrle."

Which is, of course, the right result.

The Summary Judgement Standard on Supreme Court Nominees

This is probably only of interest to lawyers. George Washington Law prof Neil Buchanan at Dorf on Law has a suggestion about how senators should handle future Supreme Court nominees:

[T]he confirmation process would be vastly improved if senators adopted an approach to evaluating future nominees that roughly corresponded to the basic process of a civil case: pleadings, discovery, trial. More accurately, each individual senator could and should assess his or her support of a nominee on a basis analogous to motions to dismiss for failure to state a claim (the familiar 12(b)(6) motion), motion for summary judgment, and only in very rare cases a verdict after the equivalent of a trial.

He makes this suggestion against the background of how the confirmation process has gone in the past - badly:

The way the process actually played out was not just a waste of everyone’s time but a trap for those who had every reason (based on their viewpoints) to vote against confirmation. It should have been possible for any senator to announce the equivalent of his or her judgment about a summary judgment motion, saying that we knew enough to vote without the equivalent of a trial. And most importantly, doing so would have been “fair” in the very real sense that the whole notion of summary judgment itself is fair. That is, the legal system readily accepts the idea that many questions need not go to trial and that fair and disinterested adjudicators can reach conclusions on the basis of evidence short of direct testimony.

He claims the effect of this suggestion, if implemented, would be to strengthen the Senate's hand when dealing with nominees:

The most likely result of this approach would be the elimination of most confirmation hearings. Few nominees would be so borderline as to require hearings to fill in their views to satisfy senators’ curiosity. On those occasions when hearings were called, moreover, they might actually be interesting, because a president who could not count on 51 votes to confirm a nominee on the basis of the paper record might be compelled to nominate someone whose stated views during confirmation hearings would matter. Over-coaching and dissembling would still quite possibly be part of the process, but if the Senate convenes hearings only after determining that a nominee is really a close call, it would presumably be up to the nominee to make the case that she affirmatively deserves to be confirmed rather than resting on the current presumption that she can only be rejected if she commits a gaffe.

This, he says, is something both sides would want whenever it's the other party's president making the nominations.

I really like this idea. He's right that it's ludicrious for senators to say, as they do now, that they need to hear from the nominee in order to make a fair decision, and that they will keep their minds open until then. It's not necessary to do so, and it's clearly not true that they do.

A Good Defense is the Best Offense

Prof. Mike Dorf:

Here's an idea I've been trying to sell to the various reporters that have called me about executive privilege in the last month or so: It's advantageous to each branch to try to position itself as a defendant if the case gets to court, because that way, a judicial decision not to intervene is a de facto victory. For example, suppose that (A) the House were to go to court to try to get an order compelling Harriet Miers to testify, and the President (on behalf of Miers) cited executive privilege. A decision that the case is non-justiciable would be a victory for the White House. On the other hand, suppose that (B) the House Sergeant at Arms seeks to arrest Miers for contempt of Congress, and Miers goes to court for a protective order, citing executive privilege (backed up by the White House). Now a judicial decision not to intervene is a victory for Congress. To be sure, there's nothing technically stopping the House from attempting scenario (B) after failing at scenario (A), but because these matters tend to play out in the court of pubic opinion, that would be much less advantageous than attempting (B) directly.

Makes sense to me. I hope someone in the Dem leadership listens to stuff like this, because they need all the help tactically that they can get.

Christianist Fails Mass. Bar, Sues Over Gay Domestic Relations Law Question

Talking about this guy, zuzu says:

It's a domestic-relations question, Stephen.  It's not a legality-of-gay-marriage question.  And in any event, I don't see where you have to approve or disapprove of Mary and Jane, you just have to determine their respective rights to marital property.  Under the law. As it stands.  In Massachusetts.  Where you live.  Which recognizes the legality of Mary and Jane's marriage and does not distinguish between the rights of Mary and Jane under this fact pattern or Bill and Ted or Bob and Alice, for that matter.

Though, about that score: seems to me that if you failed by that slim a margin [268.866/270 passing], you must have gotten some other questions wrong, and so an injunction barring the bar examiners from considering that question in calculating your score isn't actually going to help bring your score up to 270.  Perhaps you could try harder next time out.  Pay a little more attention to the procedural questions, maybe.

Oh, he'll probably pass the next time out. This stunt is just meant to endear himself to some wingnut legal group.

Appeals Court Uses Circular Reasoning to Toss ACLU Case Against Warrantless Surveillance

Melissa Goodman at ACLU Blog:

This morning, in a 2-1 decision, the Sixth Circuit Court of Appeals dismissed our legal challenge to the Bush administration's warrantless surveillance program. But the appeals court refused to rule on the legality of the program, thus denying Americans their day in court. They didn't say that warrantless wiretapping was okay: They chose not to talk about that issue. No, they dismissed the case because, they claimed, our clients did not have standing in court to sue. The two judges who ruled to overturn the earlier district  court decision claimed that although our clients may have had plenty of reason to believe they were being wiretapped, they couldn't prove it for sure.

This means that the Bush administration has the distinct privilege of declaring itself above the law and announcing publicly that they are illegally spying on Americans. But when journalists and lawyers, who rely on confidentiality to do their jobs, object in court, that same administration invokes the states  secrets privilege to keep anyone from proving that the NSA is doing what  they already said they were doing.

It's Rumsfeldian in its  circuitousness.

Astonishing, but that's what you get when you vote for Republicans.

Supreme Court Rules For Corporate Free Speech, Against Individual Free Speech and In Favor of Government-Sponsored Religion

Scotusblog:

In the second decision of the day, ... written by Alito and again dividing the Court 5-4, the Justices ruled that taxpayers do not have standing to sue to challenge the White House program on federal aid to faith-based organizations. The Court did not overrule Flast v. Cohen [which held to the contrary], also [sic] two Justices in the majority urged it to do so.

And:

The fourth ruling, written by Chief Justice John G. Roberts, Jr., over three full dissents and one partial dissent, declared that public school officials do not violate a student's free speech rights by punishing the student for words or actions that promote a drug message. The ruling also should count as a 5-4 decision because Justice Stephen G. Breyer would have decided the case on qualified immunity grounds, and not reached the First Amendment issue.

And:

The Court issued its fifth ruling of the day, concluding that a Wisconsin abortion rights group had a First Amendment right to aid during election season campaign ads that named a candidate running for the Senate. Three of the five Justices in the majority urged the Court to overturn the part of a 2003 ruling that upheld the constitutionality of the federal law restricting such radio and TV ads close to elections. The Chief Justice's main opinion, joined fully by Justice Alito, said the case did not provide an occasion to revisit that ruling. Justice Souter recited at length from the bench for the four dissenters -- who were in the minority on four of the five rulings on Monday.

Shorter conservative Supreme Court justices [sic]:

Religion in government is good. Political contributions are good. Individual free speech is bad.

They're all 5-4. They're by Roberts or Alito (Thanks Mr. Nader!). They're all subrosa overrulings of recent precedent, so they don't have to take responsibility for being so unprincipled.

The Court will next issue decisions on Thursday, when it is expected to complete its current Term with four rulings -- counting as two the school integration cases. The others are a case on executing mentally disturbed criminals and on the standard for judging antitrust violations.

Can't wait.

(Via ACSBlog.)

Date Rapist Almost Gets Away With It

(Cross-posted from Gloria Brame's blog.)

The verdict in the trial of a date rapist here in Philadelphia came down this past Wednesday, and because of what I think is a toxic stew of sexism, racism and lingering social prejudice against online dating, the guy almost got away with it.

It was a pretty sensational case because Jeffrey Marsalis met six of his seven victims on Match.com, an online dating service, and posed as an emergency room doctor, a NASA astronaut, and/or a CIA assassin. Each of the victims reported that they had a drink or two with Marsalis, blacked out, and then Marsalis had sex with them. The defense consisted of calling all seven of them lying sluts who had gotten drunk and fucked on the first date, then cried rape afterward.

Largely, the jury bought it.

On Wednesday, Marsalis was acquitted on 33 of 35 charges, including 7 counts of rape. But in what is seen as a "compromise verdict", he was found guilty of two counts of sexual assault:

The jury of eight women and four men deliberated five days before announcing its verdict Wednesday. At one point, jurors were heard screaming at one another during deliberations.

I normally have a great respect for the work of juries, but this group just blew it. A compromise verdict means that there were some people on the jury who held out for a conviction, and they're to be thanked. But the rest screwed up. They preferred to think seven women were liars willing to put an innocent man in jail, rather than think one man was a serial rapist.

There were several factors at play here, I think. First of all, sexism: The victims didn't behave as rape victims "should". They talked to Marsalis after the attacks. They didn't call police, but told friends they had been raped. They didn't go to the cops because they couldn't remember anything that happened, of course.

The second major factor: Marsalis and, presumably, his victims are white. In Philadelphia, you'd get a majority-black or even all-black jury, usually mainly middle-aged people. And we know that the jury was 8 women and 4 men. There is not a more sexually conservative cohort that I can think of than middle-aged black women in Philadelphia. The common prejudice against whites is that they are all unnatural perverts. Plus you get the disapproving perspective of middle-aged women against younger women who are putting themselves out there online.

So these women got assaulted twice, as the saying goes. First Marsalis drugs and rapes them, then they got a jury predisposed to believe that they were sluts for using an online dating service and drinking with a man they just met.

Footnote

Judge's order (pdf):

(Via Dr. Bitch.)

The Criminal Color

It's 2003.  Some teenagers are having a party, and as teens today are wont, they are smoking pot, drinking, and fucking.

One of the attendees at the party was a 17-year-old boy. Another was a 15-year-old girl. A third was someone with a video camera.

Caught on video was much sexual activity, including the boy getting head from the girl. Curiously, at the time, a 17-year-old person having oral sex with a 15-year-old person was aggravated child molestation.  Fucking crazy.

So, off the 17-year-old goes to jail.  For 10 years, statutory minimum. Ever fucking crazier.

But wait!

In 2006, subsequent to the "crime", the law was changed to make the conduct a misdemeanor.  At most, a year in jail.

The kid has done 27 months already. So they're going to let him out, right?

Nope. Oh, I'm sorry, were you assuming he was white? No, he's the criminal color. Here's a pic of Genarlow Wilson at 17:

He's described as:

In 2003, Wilson was an honors student, standout athlete and homecoming king preparing for his SATs with an eye toward college.

True, but he's black, so he was born for jail. So sayeth the assistant attorney general on the case, one Paula Smith.

The Georgia State Legislature is trying to pass a bill to free Wilson. But it's blocked by a top Republican (did you even need to be told?) senator, Eric Johnson:

It's too bad I don't live in Sen. Johnson's district, so I could stand on the motherfucker's desk myself. But anybody who does live down that way should be kicking his door in - in a very polite manner - to express themselves on the topic.

Or you can write to Sen. Johnson.

Or you can contact the Attorney General's office.

Or you can donate to the Genarlow Wilson Legal Defense Fund.

(Via Sally Hemings in Paris.)

 

Britain's Proposed Ban on Certain SM-Themed Porn

(Cross-posted from Gloria Brame's blog.)

Last September, Gloria wrote about a proposal for a new law in Britain:

Viewing vile images of rape and sexual torture will become a criminal offence for the first time, it was confirmed today.

Possession of so-called "violent and extreme pornography" will carry up to three years imprisonment.....

It would cover, for example, violence that is - or appears to be - life-threatening or is likely to result in "serious and disabling injury"....

One so-called BDSM group - representing people who engage in bondage, domination and sado-masochism - wrote: "The theory that people should be punished for viewing an image that simply involves the idea of sexuality with violence... shows the proposal being made is to introduce a form of 'thought crime'."

The new offence will apply to England and Wales. Plans are being made to extend it to Northern Ireland and the Scottish Executive will announce its plans separately....

Like Gloria, I found this proposal extremely disturbing. I wanted to find out where things stood today, and found this update from The Spanner Trust, a London-based BDSM advocacy organization:

In November 2006 the UK Government used the Queen's Speech to announce their intention to create a new criminal offence making the possession of "violent and extreme pornography" punishable by up to three years' imprisonment. The Bill has not yet been brought before Parliament, but the Spanner Trust is concerned that the current proposals do not distinguish between real or staged acts, or consensual versus non consensual activities. Images of consensual SM scenes may well be caught up in the ban.

On the 5th March 2007 a member of the Home Office said that the Bill will be introduced "in the Spring" but also that "nothing was imminent". As soon as the Bill is introduced we would like as many people as possible to contact their MP, by letter, email or telephone but preferably by going along to see him or her personally in their surgery in their constituency, and urge them to object to the new proposed law. For more information on the campaign against the proposals please visit www.backlash-uk.org.uk

As misguided laws often do, this one sprang from a criminal case that excited public outrage:

[Graham] Coutts, 36, of Waterloo Street, Hove, East Sussex, allegedly strangled 31-year-old [Jane] Longhurst, a special needs teacher originally from Reading, Berkshire, with a pair of tights in March 2003.

Her death took place just hours after Coutts viewed internet porn sites such as "necrobabes" and "hangingbitches", his trial heard.

Chief executive of the new Child Exploitation and Online Protection Centre, Jim Gamble, said of today's measures: "Legislation is only truly effective if it develops step by step with technological advances.

"Today starts to answer that need in respect of how the internet can be used to supplement this area of criminality."

Mr. Coutts had his conviction reversed on appeal, and is awaiting retrial, because the original trial did not permit the jury to choose manslaughter, a lesser offense, instead of just murder. Based on my reading of the articles, though, it seems Mr. Coutts did have a necrophilia fetish, and in fact visited Jane Longhurst's corpse several times over a period of weeks before dumping it. All of which has little, if anything, to do with whether S&M porn should be legal, of course.

The British Home Office published a paper (.pdf) that laid out in detail what the ban would cover:

15. In summary, material would need to be:

(a) pornographic
(b) explicit
(c) real or appears to be real act (these would be objective tests for the jury)

16. It would cover:

(i) serious violence*
(ii) intercourse or oral sex with an animal
(iii) sexual interference with a human corpse
*by serious violence we mean appears to be life threatening or likely to result in serious, disabling injury.

The Home Office paper also laid out the objections:

Opposition to the proposals was expressed by a number of sexual freedom organisations (such as the Spanner Trust, Unfettered, the Sexual Freedom Coalition, SM Pride and others), several BDSM-related businesses, anticensorship organisations (e.g. Feminists Against Censorship, Ofwatch, Cyber-Rights & Cyber-Liberties), and some IT-related organisations.

Among the arguments those groups made:

A majority of those responding in detail to the Consultation as individuals opposed the proposals. Many of these referred to BDSM practices, expressing concern that a large number of law-abiding citizens who consensually engaged in such practices in private or in like-minded groups, and who circulated the associated images, would be criminalised by the proposed laws. ...

Most BDSM-affiliated respondents considered that these offences would not only proscribe certain images but would effectively criminalise their sexual lives:

“The theory that people should be punished for viewing an image that simply involves the idea of sexuality with violence (rather than a real instantiation of it) shows the proposal being made is to introduce a form of ‘thought crime’.”

“Criminalising the possession of material relating to a person’s own sexuality amounts to criminalising that sexuality itself by the back door.”

In other words, the kinksters argued, depictions of real violence could be banned, but depictions of fantasy violence was an unwarranted attack on BDSM as a whole.

Arguments for the proposed legislation should sound familiar, since they've been made in the U.S., too:

This imagery provides the cultural backdrop against which the abuse of women is mainstream and endemic. Legislation to strengthen the possibility of prosecution in this area would send out a strong signal of disapproval to the individuals who believe that easy accessibility equals an acceptance of their behaviour.

And:

The director of the Child and Woman Abuse Studies Unit at London Metropolitan University reiterated this, pointing to its own research, training and consultancy for almost 20 years, and asserted that:

“Adult pornography in its extreme forms should be considered in the same way that child pornography is – a record of sexual abuse…Our interest has never been in ‘proving’ direct causal links between pornography and specific acts of sexual violence, although there certainly is strong evidence with respect to individual cases, but to suggest that the existence and now virtual ubiquity of pornography creates a cultural context which devalues women’s humanity and dignity…Government is right to argue that it does not need proof that images of torture and degradation are corrupting and may affect behaviour.” (Child and Woman Abuse Studies Unit at LMU)

This is pretty unambiguous: The censors don't care if there is any actual evidence of a causal connection between porn and violence against women, they just "know" it causes it. And even worse, the censors say that depictions of S&M are exactly the same ethically as child porn, because they "know" masochism cannot be consensual.

I don't see any further news on the progress of the bill in the British Parliament. As of May 9th, it was still pending to be introduced in the House of Commons. I will try to find out where things stand from backlash. I would appreciate it if anyone in Britain would comment with any news.

The Turkey Baster Method Makes You the Daddy

No good deed:

A Pennsylvania appeals court has ruled that a sperm donor who helped a lesbian couple conceive two children was liable for child support.

One legal expert believes might be the first ruling of its kind.

A Pa. Superior Court panel last week ordered a Dauphin County judge to establish how much Carl Frampton Jr. would have to pay to the birth mother of an eight-year-old boy and a seven-year-old girl.

With a keen sense of timing, Mr. Frampton died, so he is not actually going to have to pay. For those of you in the class who are paying attention, we went over this years ago:

If you donate sperm to someone you know, you're the daddy. If you want an enforceable oral agreement that will protect you from paternity, come in her mouth. There are laws in certain states that allow unknown donation through a sperm bank to relieve you of parental responsibilities (and rights, it works both ways.) But if you jerk off into a cup so your bestest female friend can do the turkey-baster trick, then you better get a good job, my friend, whether you have something in writing or not.