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Get Out Your Hankerchiefs

[ 0 ] May 20, 2008 |

GOP vote suppression guru Hans Von Spakovsky cries in the Wall Street Journal about unfairly being denied a spot in the FEC for such trivial matters as lying to the Senate Rules Committee and pre-clearing de facto poll taxes struck down by the federal courts. Boo hoo hoo hoo hoo!


Family Values

[ 0 ] May 20, 2008 |

As Vito Fossella ends his political career in disgrace, let us remember such things as his belief that the Constitution of the United States should be amended to explicitly make gays and lesbians second-class citizens:

Vito Fossella built a career as a staunch “family values” pol, polishing his image in his predominantly Catholic district with a string of anti-gay votes.

He even shuns his gay sister, Victoria Fossella, refusing to go to family events if she and her partner attend, a source close to the family said.


As congressman, Fossella voted to prohibit any funding for joint adoptions by gay couples.

He has voted for the Marriage Protection Amendment, a federal prohibition on gay marriage.

He also demanded housing funds be held back from San Francisco unless it repealed its domestic partnership law.

I’m embarrassed that New York City was ever represented by this hateful clown, although admittedly in some way I suppose I respect his shunning of his sister more than Cheney-style wining on gay bashing while treating his sister daughter cordially. At any rate, whether the prospect of some same-sex couples getting married is a greater threat to Traditional Family Values than maintaining multiple families while lying to each partner about the other’s existence and relying on your mistress to bail you out when you risk other people’s life by driving when stone drunk, I leave to the reader’s judgment.

Part of the American Democratic Process

[ 16 ] May 19, 2008 |

In response to Eugene Volokh, I should say that I’m perhaps making a slightly different argument than the one he’s addressing. My point about the vote in the legislature, as well as the support for same-sex marriage signaled by the governor urging the courts to resolve the issue and opposing a referendum to overturn it, is that claims of judicial usurpation of the prerogatives of the political branches are not in any way a useful description of this case, as a majority of legislators and the governor almost certainly agree with the court’s ruling. As is often the case, the California Supreme Court’s decision does not involve a zero-sum struggle for power, but rather is a case where the courts are resolving an issue because it cross-cuts existing party coalitions. This, in itself, doesn’t mean that the court’s decision was right; it’s possible to disagree on the merits. In many cases, one can also argue that the courts should respond to evasion by the other branches by throwing the ball back, but in this case it’s complicated by California’s silly system allowing its constitution to be amended (and hence judicial decisions overridden) by a simple majority of the popular vote.

I am, however, somewhat puzzled by his implication of disagreement with the proposition that “California Supreme Court’s same-sex marriage decision actually consistent with the democratic process.” In the American system, for better or worse, it’s part of the democratic process for the judiciary to scrutinize the actions of the other branches as well as (in California’s case) popular initiatives and pass judgment about their constitutionality. Strong-from federal review is a well-established part of this process, making California’s effectively very weak-form review certainly consistent with it (as Volokh somewhat concedes here.) I can imagine, in the abstract, an argument that the courts should always defer to other branches or the people unless the text of the constitution is clear. But, in practice, virtually nobody in the American system believes this or acts like this in practice, so these claims generally amount to arguments that progressives should unilaterally disarm. I don’t know if this is true of Volokh specifically, but certainly most of the critics of the California decision have no objection to cases where the courts use ambiguous constitutional materials to override electorally accountable officials to reach more congenial policy results (cf. Parents Involved, Garrett, Morrison) and are also strongly critical of the court in some case where it does defer in the face of ambiguity (cf. Kelo, Raich, Grutter.)

The California court could, I suppose, be criticized for usurping the democratic process if its reading of the state constitution were simply unreasonable, but that’s not the case. The majority’s reading is not commanded by the constitution, but it’s certainly defensible. And if we’re going to have judicial review, protecting unpopular minorities from being arbitrarily excluded from fundamental privileges strikes me as being at the type of case where judicial intervention is most defensible. But even if one disagrees, I fail to see how the court’s holding is in any way inconsistent with democracy as it is actually practiced in this country.

Home Cookin’

[ 4 ] May 19, 2008 |

I remember in the 2004 Playoffs there was a trend of reversing them calls and getting them right. I liked that much more than overruling clear home runs based on nothing in particular. Oh well, if they keep hitting it shouldn’t affect the outcome of the game…

What To Do With Lieberman?

[ 24 ] May 18, 2008 |

Publius tries to make a case to keep him quasi-inside the tent. I do share his basic premise — achieving legislative ends is more important than feeling good about punishing someone for its own sake — so his conclusion is not as unreasonable as I might prefer.

I do think he’s omitting a couple of a factors that have to be considered. First, it’s important to remember that committees, and especially committee chairs, are also important gatekeepers and veto points, and having a member of the Wanker Caucus in the wrong place can do a lot of damage (cf. Feinstein at Judiciary.) Second, we have to remember that his vote record can be misleading. One some issues — such as Alito and the bankruptcy bill — he’s cast a meaningless correct vote on the merits while voting with the Republicans on the cloture vote that actually mattered. Since the challenge under a Democratic administration will be more getting to 60 votes on cloture than 50 on the up-or-down, this isn’t very reassuring about the power of party leverage. And finally, it’s also important to remember that he’s potentially constrained in some areas by a blue-state constituency; he doesn’t necessarily have the same freedom of action that a Zell Miller does.

Given these things, if Lieberman were planning on running for re-election I think the balance of factors would dictate kicking him out. However, that’s probably not something that can be counted on. I forget where I saw a commenter suggest this, but the idea I like is to offer Lieberman a deal: vote “yes” on every cloture vote and you can keep your committee slots. If you join a Republican filibuster once, you’re stripped of everything and you can move into a broom closet with no air conditioning. Alas, I suspect what will happen is that Lieberman will keep his positions and Reid won’t get much out of it…

Clashes of the Titans

[ 12 ] May 17, 2008 |

Tim Marchman says that the Subway Series this year “is no battle for honor between two hardened champions, but a pair of bums fighting over a ham sandwich in an alley.” There are, however, considerably more pathetic rivalry series. Such as the Mariners/Padres, which is more like fighting over a half-eaten McRib that’s been sitting for a day in a dumpster outside of a medical waste facility. However, it must be conceded that the white-hot intensity of this traditional rivalry overcomes the abysmal quality of the teams. I hope everyone will be showing up to Safeco with their “Bevacqua sucks” and “F^%$ Archi Cianfrocco” shirts.

When your team crashes, burns, and falls into the swamp, you can at least get some quality snark, such as this from USS Mariner‘s Derek Zumsteg on the Bedard/Jones/Sherrill trade:

What a horrible trade, made worse by how it took so long to complete. It was like being tortured by watching Miss Congeniality 2 on a loop tape, where time gets slower and slower, giving me more time to dwell on the never-ending horror playing out in front of me, the pain of which slowed time even further.

Any time you get fleeced by the Orioles, you should just quit. Just turn in your laminated RFID pass to the office doors, hand over the company cell phone, and walk out onto the street. You’re done.

And it’s not just that the Mariners decided to sell out the future in a trade, and then do it in a half-assed way (if you’re going for it this year, you can’t keep Vidro and Sexson, keep Ibanez in LF, etc.) What’s even worse is that the organization in 2002 and 2003 — when a sacrifice of long-term interests actually would have made sense, as they had a competitive but very old team — Stand Pat let them die on the vine.

And then there’s the manager. It’s one thing if, as in the case of Joe Morgan or (in an obscure but more egregious case, and what I think was an even greater factor in the death of my beloved Expos than the cancellation of the World Series in ’94, Jim Fanning) when the in-over-his-head organizational time-server you hire as a mid-season replacement lucks into the postseason, and you probably have to keep him for another year. But McLaren took over the team last year, it collapsed down the stretch in no small part due to his atrocious bullpen management and inexplicable lineup decisions, and…you bring him back anyway? If you’re going to trade away an Adam Jones for a short-term fix, and you start the season with John McLaren as your manager…it really is time for a full housecleaning in Seattle.

Easy Answers To Stupid Questions

[ 15 ] May 16, 2008 |

Glenn Reynolds:

CALIFORNIA’S SUPREME COURT STRIKES DOWN the state’s ban on gay marriages. Did it just hand the state to McCain?


This has been easy answers to stupid questions. Although, admittedly, the massive Republican landslide in the wake of the New Jersey civil union decision in 2006 and their shocking upset victory in Massachusetts in 2004 certainly does give one pause.

…UPDATE: I see that Steve M. actually beat me to this. With data!

Easily Dismissable Whining of the Day

[ 33 ] May 16, 2008 |

Sounds like the new HBO movie about the 2000 recount got it right, which understandably has displeased the embalmed corpse the Gore campaign chose to oversee its strategy:

Warren Christopher, the former secretary of state who served as the public face of the Gore team in the early days of the recount effort, said this week that he believed the film, “Recount,” was “pure fiction” in its portrayal of him as a weak strategist unprepared to stand up to the aggressive tactics of James A. Baker III, the former secretary of state who was the chief Republican adviser.

Baker helpfully adds that “I don’t think I was as ruthless as the movie portrays me, and I know he was not as wimpish as it makes him appear.” Well, I’m convinced!

Admittedly, perhaps Christopher absolutely getting his clock cleaned by Baker in his public actions and statements doesn’t reflect the passionate intensity he brought behind the scenes. I know how I’m betting! But, at any rate, it’s the public failures that matter, and it’s good that the film seems not to shy away from that.

Re-Raising MoDo

[ 16 ] May 16, 2008 |

Shorter Verbatim Camille Paglia: “I for one have renewed questions about the 1993 suicide of Deputy White House Counsel Vince Foster, Hillary’s former law partner and longtime friend, whose files were purged by Hillary’s staff before they could be examined for evidence.”

Heckuva job, Salon!

The Political Impact of Same-sex Marriage Rulings

[ 17 ] May 15, 2008 |

David Weigel says that “Politically, I suppose this is bad news for the Democrats, but not nearly as much as in 2004. For one, it’s not coming out of a candidate’s home state.” Tom Maguire, meanwhile, asserts that the California Supreme Court may have done the GOP a “favor.” As I’ve been through before, though, while I know I’m supposed to see 2004 results in which Bush underperformed structural models as proof of Karl Rove’s strategic super-genius the allegedly large effects of gay and lesbian marriage on the 2004 election have been greatly overstated. And needless to say, predictions about how the New Jersey court’s ruling were supposed to have a major impact on the 2006 elections will vanish down the memory hole.

I don’t really find this surprising. People overstate the extent to which people vote on social issues, and people who get outraged by decisions permitting gays and lesbians in other states to get married are overwhelmingly likely to be Republican voters anyway. I don’t think that the decision today will have any significant impact on the 2008 elections. It may increase turnout in California, but since the state isn’t in play it doesn’t really matter.

On a final point, Weigel over optimistically says that “John McCain voted against the Federal Marriage Amendment: He can’t demagogue this, and he won’t.” Yeah, just like how his alleged “federalist” opposition to Roe stops him from supporting every piece of federal abortion legislation to come down the pike. I don’t know what McCain will do but I am sure that an alleged commitment to “federalist” principles won’t stop him from doing anything.

California Same-Sex Marriage Ruling

[ 0 ] May 15, 2008 |

The California Supreme Court, six of whose seven members are Republicans, has ruled that the exclusion of same-sex couples from the legal benefits is unconstitutional (pdf). The opinion isn’t lucidly formatted but if I count the votes correctly it was a 4-3 decision [confirmed here.]

After finding that marriage is a fundamental right (a premise that should be uncontroversial), the majority holds that the policy cannot survive strict scrutiny: “the purpose underlying differential treatment of opposite-sex and same sex couples…cannot properly be viewed as a compelling state interest for the purposes of the equal protection clause, or as necessary to serve such an interest.” The narrow tailoring argument is I think where the exclusion of same-sex couples from marriage benefits really runs into constitutional problems; it is hard to argue that there are state interests in marriage that cannot be advanced in any other way but to exclude same-sex couples. I will have more on the text later, but if I read it correctly the court seems to require, like the Massachusetts court ultimately did, that reserving the label “marriage” for different-sex marriages is unconstitutional.

I’ll have more on the decision later, but a few points should be made at the outset:

  • First, claims that the decision that the court “usurped” the legislature should be undermined by the fact that the legislature passed legislation recognizing same-sex marriage, but had the legislation vetoed by the governor, who urged the court to resolve the issue.
  • Second, you will read claims that the decision will spark a massive backlash; keep in mind that the same people made the same argument about judicial decisions in Massachusetts and New Jersey and were mostly wrong.
  • Finally, Kevin Drum notes that there will almost certainly be a vote in the issue in the November; hopefully a majority of citizens will not vote to repeal the rights of some California citizens.

another good excerpt from K-Drum. Sullivan excerpts the court’s explanation for why strict scrutiny should apply.

A Gideon v. Wainwright For Forensics?

[ 0 ] May 15, 2008 |

Balko makes the case.

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