In Defense of the Obama Administration’s Prop 8 Brief
The Obama administration filed a brief arguing that Proposition 8 is unconstitutional. Bmaz is very upset, calling it “cowardly,” “timid,” and a “states rights” argument. (I find the latter charge particularly amusing; say what you will about Obama, at least unlike bmaz he was never sympathetic to neoconfederate arguments against the constitutionality of the PPACA.) Anyway, this is really overwrought:
- It’s not accurate to say that the Obama administration is merely making a Romer-style argument. As you can see if you read the brief, the government explicitly calls for classifications based on sexual orientation to be subject to heightened scrutiny. This goes beyond what Romer (explicitly) held, and to call that a cowardly or “states’ rights” argument is really absurd. Bans on same-sex marriage would have virtually no chance of surviving heightened scrutiny, and hence would almost certainly lead to a national right to same-sex marriage whether or not the decision was immediately limited to the California case.
- It is true that, having made a case that sexual orientation should be subject to heightened scrutiny, it then limits the application of this principle to the case at hand. This is just intelligent, responsible lawyering. It is far from obvious that the court’s median vote is ready to declare a national right to same-sex marriage. The most crucial goal for this litigation is to ensure that the Court doesn’t uphold Prop 8 and create a disastrous Bowers like-precedent. The brief reflects this perfectly; the heightened scrutiny standard would allow Kennedy to create a national right to same-sex marriage if he wants to, but it’s important to emphasize that he can write a narrow opinion that would strike down Prop 8 while leaving the question of other state bans open. Portraying this as an all-or-nothing proposition would be foolish, since there’s a reasonable probability that Kennedy would choose “nothing.” The Solicitor General’s brief isn’t an act of narcissistic self-expression with liberal bloggers being the audience; the SG’s job is to make arguments that have the best chance of appealing to the median vote on the Supreme Court.
“heightened security” s/b “heightened scrutiny”
Oh, and see Obama taking this question at his press conference. Special bonus “if I were on the Court” included.
But if Obama just used the BULLY PULPIT he could become the median vote on the Supreme Court. Then he could move on to a real nationalistic progressive agenda, like overruling McCullouch v. Maryland.
All he needs is do a Jedi mind-meld on Scalia.
Ick. I think I just threw up a little in my mouth at the thought of a mind-meld with Scalia.
That way lies darkness and insanity.
That wouldn’t work. Scalia conclusively proved that Jedi Mind Tricks don’t work when he resisted Luke Skywalker’s efforts to force the release of Han Solo and, instead, opened a trap door under him to make him fight a horrid monster.
Ah, but if Spock were a Jedi…
Deedle-eedle-eedle-eedle-eedle-eedle-eedle dum!
He’d fight all the monsters he could fight,
If he were a Jedi Knight!
A snippet from “Further Reflections on the Obama Amicus Brief in Prop 8,” posted on March 1, 2013 by bmaz
In addition to the BULLY PULPIT stuff, the funny thing is that the brief does in fact argue for “heightened scrutiny equal protection for all, in all states.”
The comments are even dumber, which would hardly be worth mentioning except that bmaz himself is making many of them.
Attributing BULLY PULPIT powers to the Attorney General is novel.
But under the theory of the unitary bully pulpit, it’s really not.
As a progressive I strongly believe that the president’s AG should be able to just bully the Chief Justice of the United States.
Any trial lawyer will tell you that a really good way to get the judge to rule what you want is to very plainly work to bring political pressure and public opinion on bear on him.
Eric Holder all smacking the decision out of Roberts hands, being like, ‘look what you made me do,’ kicking him in the butt when he bends over to pick it up
Stop overruling yourself.
Stop overruling yourself.
Stop overruling yourself.
And Obama picks it up and holds it over his head and Roberts jumps to try to reach it.
Take off that robe so I can give you a wedgie.
Unrelated, but I found this gem in the comments: Scooter Libby has his voting rights back.
Can somebody explain to me why a lot of people have problems with basic strategy? A lot of discontent with Obama from the Left seems to be that Obama goes for things that he acts to rational in terms of what he goes for and how he achieves them. Would people really prefer that Obama go for something that can’t be achieved and fail, possibly making things worse in the processm or actually do something thats achievable.
It’s just pretty standard leftier-than-thou rhetoric. When Obama does something good, he must actually be secretly sabotaging the better outcome that would have happened had he not derailed it.
This has to be a pretty miserable way of going through political life or life in general.
well it’s better than principleless centristery than thou ramblings of very serious people like Scott
The highest principle of politics is to not allow emotions to cloud your judgement. Only through dispassionate consideration of the options on the table can progress arise. To guide yourself by dispassionate reason is not centrism, but in fact is in many ways quite radical. The centrists of the world want to treat politics as a horse race, and it’s the people who want to treat politics as a scramble for power who are principleless hacks.
To Anonymous, the highest principles in politics is not to let judgment cloud your principles.
Politics as unmediate self-expression. Who cares what actually happens, as long as you don’t lower your freak flag one centimeter.
http://www.hoover.org/publications/policy-review/article/6232
I know its from the Hoover Institute but it really gets to the heart of Anonymous and many other people’s worldview. In this world view, the point of politics is to do whats “good for your soul” rather than anything that might achieve your goals in the real world.
I think it’s pretty clear large swaths of the self-described left not only have no idea about political strategy, or about how change happens in the U.S. political system, but in fact stay intentional ignorant of the matter.
Between the Nader-in-Florida debacle in 2000 and the number of liberal friends I had who argued last year with a straight face that there was no real difference between Obama and Romney, I’d say you’re probably right.
Ugh, yes. There’s this intense obsession with the presidency, to the exclusion of any real focus on Congress, state legislatures, etc. The obsession assumes that there are superpowers inherent in the office, and when the office holder is not super-heroic, he (or, as it will eventually be, she) becomes the object of hatred, and then people swear that there’s no difference between Obama and Romney.
And all the while, Republicans in Congress and the states are causing serious damage, and no one has a plan to do anything about it.
Sad, but oh so true.
I gave up on the “no difference between the two parties” meme a long time ago. It’s a vapid, putrescent thing that needs to be put down for good.
The same can be said of the Tea Party right, which for several years now has been ensuring outcomes which are less conservative than its professed policy preferences, by failing to vote for deals negotiated by Boehner et al.
I read a British blog called Harry’s Place and the situation doesn’t seem much better in the UK or the rest of Europe. At least we don’t have any ostensibly leftist organizations that are really creepy rape cults like the UK’s SWP in the United States.
Harry’s Place is completely terrible, and it’s hardly an unbiased source of information on the SWP.
A substantial amount of the SWP’s rank and file and prominent members has organized to reject and overturn the Central Committee’s actions in that case. Calling all of those people members of a “creepy rape cult” is outrageous.
A lot of people, Left and Right, seem to operate under what Lee Harris called Fantasy Politics in a very interesting article published years ago about the possible motivations for 9/11. Under Fantasy Politics, the goal of political activity isn’t to affect change or convince others but do engage in a political act as a form of individual group therapy or salvation. The difference between Leftist and Rightist Fantasy Politics is that Rightist Fantasy Politics tend to do a lot more actual damage in the real world. Leftist Fantasy Politics tend just to be ineffectual.
Because the Rightists actually, you know, go out and vote. They know the tools of democracy and they can’t wait to get their grubby hands on them to cause mischief.
The Leftists, on the other hand, either do not know how real politics work, or they don’t care. They also seem to think that getting your hands into politics will instantly corrupt you. I wonder if any of them have read Alinsky….
This. Leftists also seem to be more into the theatrics of Protest politics and street theatre and have less patience for the grunt work of party politics. Rightists aren’t immune to theatrical street politics but tend to deal with the boring tedium of electoral politics a lot better.
Let’s keep in mind that this isn’t about “leftists” in general, but about a small faction of them that use the internet to amplify their voices and pretend (or actually believe) that they are much more numerous than they are.
Van Jones is nobody’s idea of a centrist, but he know how politics work.
“Obama had 60 senators to pass the public option”
=
“Keep you gov’t hands off my Medicare”
judged against, like, reality and coherence.
I’ll be a lemming and maybe even cannon fodder for a revolution, but not when it appears to be led by dumbasses.
Because they think in terms of a Political Activist in Chief.
If it’s useful for street activists to articulate a maximalist position, even at the expense of pragmatism and nuance, then it must a billion times more useful for a President to act that way.
I think that Al Giordano at Narco News said it best: because Obama was a community organizer, he had to deal with different voices and opinions and take a pragmatic approach to things, but he also had the long view. An activist, by contrast, only speaks to the choir. They are not really interested in a long-term goal; it’s only something that is immediate.
Why are the only options gaining some often sub-mediocre “achievable” objective or failing to gain anything?
Because Freedom.
Why are the only options gaining some often sub-mediocre “achievable” objective or failing to gain anything?
This is not always true, but for the relevant ones the obvious explanation is such obscure factors as “needing the votes of 60 Senators” or “5 Supreme Court justices.”
And let’s not pretend lowering the standard to “needing the votes of 50 Senators” would be a path to socialist utopia or anything. It would be nice, but it wouldn’t be that.
Because our Founders were either working in the dark when they designed the American political system and we didn’t end up with a Parliamentary system operating on a majoritarian basis.
Because actual history?
the only options gaining some often sub-mediocre “achievable” objective or failing to gain anything?
Well, (1) Getting a good result of every gay in California is no small “sub-mediocre” thing. And (2) case law is incremental–that’s the way case law works. You win one case and establish the precedent on which the next one will be based. Thurgood Marshall understood this.
Yup. Shorter bmaz: “The NAACP were sellouts for winning cases without arguing that Plessy should be overruled in 1938.”
Frankly, I am just pleased that the administration has explicitly staked out a claim here. That has not always been a given and marks a substantial evolution in the president’s position on this topic.
Plus it would have been easy for the feds to not take any position because the case before the Supremes only effects a California law. Its a big step forward and one which they were not required to take. Bmaz is an idiot.
That is certainly part of my thinking, as well.
There are plenty of things that Obama is doing or has done that would justify calling him “cowardly” or “timid.” This is not one of them.
If Obama really cared about gay people he would be on a cross-country tour to build support for a Constitutional amendment legalizing gay marriage, obviously.
If Obama were on a cross-country tour to build support for a Constitutional amendment legalizing gay marriage, there’d be someone complaining that he wasn’t doing enough because he hadn’t divorced Michelle and married a man.
If Obama divorced Michelle and married a man … etc., etc.
It’s the anti-Dayenu.
Whups, that was me. Don’t know what happened to my identity cookie.
I don’t know what happened to your cookie either, but I’m sure somehow the President’s timid centrism is to blame.
I hate cookies with timid centers.
First off, just having the SG file a brief supporting same-sex marriage is, as others have noted, a development that would have been shocking not too long ago. You just can’t understate how rapid the progress on this issue has been — regardless of how the Supremes rule.
If the DOMA case were not also before the Court, then maybe — maybe — you could have made the case for a more robust position by the administration, since the US is not a party and on constitutional matters like this, the Court isn’t going pay particular deference to the US position anyway. So perhaps you could have argued for the value of the broader political statement. But given that the US is a party in the DOMA appeal, and as an issue involving a federal statute the Court does (at least theoretically) care more about the US position, then it really made sense not to come off as too radical. In other words, I agree with Scott, this was an extremely defensible strategic position.
[...] also can’t resist quoting this, from bmaz’s follow-up to his argument that arguing that sexual orientation should be subject to heightened scrutiny is — unlike a decision [...]