Friday, June 12, 2009

President Georack Odubya Sucker Punches Gays

Wow. This is absolutely worthy of the Gonzo DOJ. A bi-racial American President has celebrated the 40-year anniversary of the Loving v. Virginia decision that ended state laws against interracial marriage by basically pulling out every bigoted, homophobic argument in the book to try to argue to have a federal gay marriage case dismissed, as Chris Geidner at Law Dork 2.0 points out.
Unlike the Obama Administration’s brief filed in the Don’t Ask, Don’t Tell case turned away by the Supreme Court this week, last night’s filing in Smelt v. United States goes too far. It’s offensive, it’s dismissive, it’s demeaning and — most importantly — it’s unnecessary. Even if one accepts that DOJ should have filed a brief opposing this case (and the facts do suggest some legitimate questions about standing), the gratuitous language used throughout the filing goes much further than was necessary to make its case.

John Aravosis at AmericaBlog is all over this, but I just wanted to note one example of the overreaching nature of this filing:

Section 3 of DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection. As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.

Motion to Dismiss, at pp. 27-28.

Also, thanks to the genius who decided to spend almost two whole pages breathing new life into the brief 1972 opinion by the Court dismissing the Baker v. Nelson marriage case from Minnesota “for want of a substantial federal question.” 409 U.S. 810 (1972). Motion, at pp. 28-30.

Perhaps the simplest way to express my anger at this filing is to reprint what is easily the most disingenuous line of the brief, at p. 32:

DOMA does not discriminate against homosexuals in the provision of federal benefits.

There you go.

The legal language in this filing is breathtakingly homophobic. If this is the Odubya administration's real legal opinion on gay marriage, that discriminating against gays is legal, constitutional, moral, and necessary, then I have an all new problem with this administration.

The legal wording is so vague and sweeping that it in fact almost could be construed as an avenue to overturn Loving v Virginia. John Aravosis gives an example:

On the merits, plaintiffs' claims that DOMA violates the Full Faith and Credit Clause and their "right to travel" both fail as a matter of law. In allowing each State to withhold its recognition of same-sex marriages performed in other jurisdictions, Congress was merely confirming longstanding conflict-of-laws principles in a valid exercise of its express power to settle such questions under the Full Faith and Credit Clause. That Clause ensures that each State retains the authority to decline to apply another State's law when it conflicts with its own public policies. DOMA is fully consistent with that constitutional principle, as it permits States to experiment with and maintain the exclusivity of their own legitimate public policies — such as whether that State chooses to recognize or reject same-sex marriages.
In other words, if a state wanted to say "We don't want to allow interracial marriages" then states have the right to do so. The brief tries to get out of this with the most craptastic smokescreen I have ever read:
Loving v. Virginia is not to the contrary. There the Supreme Court rejected a contention that the assertedly "equal application" of a statute prohibiting interracial marriage immunized the statute from strict scrutiny. 388 U.S. 1, 8, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The Court had little difficulty concluding that the statute, which applied only to "interracial marriages involving white persons," was "designed to maintain White Supremacy" and therefore unconstitutional. Id. at 11. No comparable purpose is present here, however, for DOMA does not seek in any way to advance the "supremacy" of men over women, or of women over men. Thus DOMA cannot be "traced to a . . . purpose" to discriminate against either men or women. Personnel Adm'r v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282, 60 L.Ed.2d 870 (1979). In upholding the traditional definition of marriage, numerous courts have expressly rejected an alleged analogy to Loving.
Got that? Loving was unconstitutional because it "advanced white supremacy" over minorities. The Defense of Marriage Act is fine because it does not advance "straight supremacy" over gays...which goes back to the really, really terribly disturbing part of the brief:
Because DOMA does not restrict any rights that have been recognized as fundamental or rely on any suspect classifications, it need not be reviewed with heightened scrutiny. Properly understood, the right at issue in this case is not a right to marry. After all, the federal government does not, either through DOMA or any other federal statute, issue marriage licenses or determine the standards for who may or may not get married. Indeed, as noted above — and as evidenced by the fact that plaintiffs have married in California — DOMA in no way prohibits same-sex couples from marrying. Instead, the only right at issue in this case is a right to receive certain benefits on the basis of a same-sex marriage. No court has ever found such a right to federal benefits on that basis to be fundamental — in fact, all of the courts that have considered the question have rejected such a claim. (And even if the right at issue in this case were the right to same-sex marriage, current Supreme Court precedent that binds this Court does not recognize such a right under the Constitution.) Likewise, DOMA does not discriminate, or permit the States to discriminate, on the basis of a suspect classification; indeed, the Ninth Circuit has held that sexual orientation is not a suspect classification.
Sexual orientation, according to the Obama administration, is not a valid category of discrimination because the Obama administration does not recognize sexual orientation as a legal basis of discrimination.

Got that? You can't be a homophobe from a legal standpoint.

Astonishing. It's like they signed their names to a Bush DoJ memo. It's disgusting. Obama could have instructed the DoJ to say "We leave this matter to the states." But no...instead it went for the whole enchilada and came out and laid the legal groundwork for saying "We give no special federal recognition to homosexuality as a legal basis for protection from discriminatory actions."

I'm not gay. I am a concerned citizen of the United States of America. And I can smell bullshit. I'm calling Obama out on this...this is the most disappointing and outright evil thing I have seen this administration do so far.

[UPDATE] John Aravosis notes that the brief not only sounds like it was written by a Bush DoJ appointee and uses much of the same legal arguments the right made against gay marriage under the Bush administration, but it in fact really was written in part by a Bush DoJ appointee.

The Two Sides Of AmeriCorps

Since it's a new day, the Right has to latch on to a new way to attack President Obama. This time it's the much maligned AmeriCorps, the public/private corporation that funds large volunteer projects in American cities. Clinton started it, Dubya kept it going for 8 years and Obama pledged to greatly expand it (much to the hatred of the Right, Michele Bachmann famously referred to the program as "re-education camps for young people".)

But there's two sides to the story that Obama has asked for the resignation of the Inspector General overseeing AmeriCorps. Side one is that the ousted IG, Gerald Waupin, is a holdover from the Bush years and targeted Obama friend, former NBA star and current Sacramento mayor Kevin Johnson as political payback. Waupin was fired for abusing his position, and was told he had exactly one hour to resign or be fired on Wednesday night. It wouldn't exactly be the first time a Bush appointee played politics while going after Democrats (recall, oh, the entire Alberto Gonzales Justice Department) and the fact there's enough precedent in the Bush administration to ask "Who watches the Watchmen?" is in and of itself a damn shame.

But side two is that where there's smoke, there's fire...and that Waupin really did uncover some major graft and corruption in faithfully executing his job as Inspector General over AmeriCorps, and he was fired unfairly for it. Waupin says he found that Kevin Johnson was using AmeriCorps grants to pay for "personal errands, including washing his car", and that the major AmeriCorps project in Sacramento, the St. HOPE Academy, had "shoddy bookkeeping practices" in documenting how it spent nearly $800,000 in AmeriCorps grant money. The U.S. Attorney's Office in Sacramento settled the case against St. HOPE Academy and found there was no basis for criminal charges.

The real problem is that both Waupin side and Kevin Johnson's side of the story seem pretty damn fishy. I think the truth to this matter is somewhere in between: Johnson got caught with his hand in the cookie jar, but Waupin literally turned it into a vendetta to cause as much damage to AmeriCorps and the Democrats as possible.

You can bet the Wingers will be all over this story, but frankly compared to the shenanigans of the Bush years, their cries of OBAMA'S CHICAGO WAY ring rather hollow compared to, say, Bush's pardoning of Scooter Libby or the intelligence fixing running up to the Iraq War.

We'll see how this plays out.

In Which Zandar Answers Your Burning Questions

Sara Robinson at Orcinus asks of Conservatives:
We know you have absolute and utter contempt for the intelligence of the average American, but trying to blame the left for creating this situation is a fabrication so vast that it tells us you don't even have so much as a shred of respect for yourselves. Even you seem to know that your word is worth nothing to most Americans now -- and you don't seem to care.

You don't seem to give a damn about the future of this country, either. You're just in it to win the next election, increase profits for the next quarter, or boost your ratings in the next book. As long as selling hate accomplishes any of these goals, you'll do it -- without regard for the cultural sewage you're creating, without regard for the way you've polluted the political landscape, and now apparently without even a moment's regard for the innocent lives that are being lost because you seem bent on destroying every shred of trust required for our democracy to function.

But the bodies are piling up. We are demanding an accounting from you. We are demanding that you take responsibility for the situation you've created. We are looking you straight in the eyes and demanding a straight answer:

Are you deliberately trying to start a civil war?
Yes, they are. Also, see GOP Plan, The.

More and more people are beginning to realize this. There are people who believe that Barack Obama and his policies must be defeated by whatever means necessary. He is the implacable Enemy to these people.

There are people willing to kill and to die to stop him. There are people willing to bring nutcases like this to the dance in order to gain ephemeral political power. It's a game as old and as tragic as humanity itself.

Shah mat. The King is dead.


Over Before It Began

Tom Goldstein of SCOTUSBlog knows a few things about judicial nomination fights, and he says that the Sotomayor fight is pretty much over and has been for some time.

Basically before it ever started, the fight over the confirmation of Sonia Sotomayor is done. She is going to be confirmed by a relatively wide margin and without a substantial, mainstream assault on her credentials or suitability for the bench.

To be clear at the outset, this is a descriptive point, not a normative one. I'm explaining the political reality, not how the process should go forward. I actually think that nominees should be subject to a substantial, sustained inquiry into their judicial philosophy and intellect.

But that isn't the world in which we live, or in which this particular nomination will proceed. The phase of defining a nominee in the public's eye now lasts around forty-eight hours. In that time Harriet Miers was pretty much done - finished. By this point, there has been a huge amount of press coverage and opponents have had the opportunity to make their case. It's a shockingly short period (unfortunately so), but it reflects (a) the ready availability of research materials, and (b) the rapid turn-over of news cycles.

For a nominee like Sonia Sotomayor, that is the life-or-death period. Once the public is comfortable with her suitability, then the irreducible political reality is that there is no serious prospect of vigorously challenging the nation's first Latina Supreme Court nominee when the President's party has an overwhelming numerical advantage in the Senate.

The collapse of serious opposition also becomes a self-fulfilling prophesy. Potential donors to conservative advocacy groups - perceiving neither a grave threat to their core values nor a real prospect of wounding an opposing President by defeating the nomination - will minimize their financial support, particularly in this economy.

Without a public drumbeat of concern - and with the press's attention inevitably shifting away - the opposition outside the circle of committed advocates is almost certain to run out of gas by the weekend, a full five or six weeks before the hearings begin. There could be a burst of revitalizing energy with the disclosure of some ethical transgression, but zero reason to believe that will actually happen.
And you notice that the GOP has basically stopped trying to attack her. They have their own problems now, and frankly they don't have the energy or luxury to spend that energy on Sotomayor with the Obamacare train coming at them full speed.

Obama Loses The Gitmo-mentum

Apparently the congressional Democrats' standard response to aggressors (piddling themselves on command as a defensive action, much like a sea cucumber vomits up its intestinal tract in order to disgust and confuse enemies) has paid off. Obama has apparently "given up" on trying to bring Gitmo detainees to the mainland.

The Obama administration has all but abandoned plans to allow Guantanamo Bay detainees who have been cleared for release to live in the United States, administration officials said yesterday, a decision that reflects bipartisan congressional opposition to admitting such prisoners but complicates efforts to persuade European allies to accept them.

Four Uighur detainees, Chinese Muslims who were incarcerated at the U.S. military prison in Cuba for more than seven years, arrived early yesterday in Bermuda, where they will become foreign guest workers. An administration official said the United States is engaged in negotiations with other countries, including Palau, an island nation in the western Pacific, to find places for the remaining 13 Uighurs held at Guantanamo.

The Uighurs, who were ordered released by a federal judge last year, never counted America as an enemy, according to the men's lawyers and human rights groups, giving the administration grounds to argue that they should live in the United States. Picked up in Pakistan and Afghanistan in 2002, the Uighurs were later cleared of the "enemy combatant" label but remained in minimum-security confinement at Guantanamo.

Attempting to settle non-Uighur detainees in the United States would generate even greater congressional opposition, and the administration has decided not to pursue it broadly, an administration official said yesterday, speaking on the condition of anonymity because of the sensitivity of the issue. But he said there may yet be "a few" candidates for settlement in the United States among the dozens of Guantanamo detainees who have been cleared for release.

Congressional Democrats yesterday reached agreement on a war-funding bill that would allow detainees to be sent to the United States for trial. The draft bill included no provision for prolonged detention without trial, a step that President Obama has said will be necessary to incarcerate detainees who are too dangerous to release but who cannot be prosecuted.

It's hysterical. Congress actually rightfully stands up to Obama on permanent detention, but they run like a scared labradoodle when it comes to the unfathomable dark superpowers they believe these detainees possess, like the ability to effortlessly escape from Supermax prisons and menace the local Super Wal-Mart and the power to teleport hordes of armed jihadis into Florence, Colorado for a surprise attack. Also, like COBRA, they have crates of blue laser rifles and a weather domination machine they they can use to create a blizzard in Washington D.C. or something. No, really. We can't let these guys in! YOU MUST BE SCARED OF THEM!

It's not that Obama lacks a plan to resettle and detain the actually dangerous ones. That's what Supermax facilities are FOR. It's that Congress is playing the fear card on themselves.

Brinksmanship Down

Friday's expected UN Security Council resolution on North Korea is expected to raise the stakes, calling for increased sanctions and inspections of imports. North Korea is expected to respond to the vote as early as this weekend by throwing another nuke test hissy fit.
U.S. intelligence officials have warned President Obama and other senior American officials that North Korea intends to respond to the looming passage of a U.N. Security Council resolution this week -- condemning the communist country for its recent nuclear and ballistic missile tests -- with another nuclear test, FOX News has learned.

What's more, Pyongyang's next nuclear detonation is but one of four planned actions the Central Intelligence Agency has learned, through sources inside North Korea, that the regime of Kim Jong-Il intends to take -- but not announce -- once the Security Council resolution is officially passed, likely on Friday.

The other three actions include the reprocessing of all of the North's spent plutonium fuel rods into weapons-grade plutonium; a major escalation in the North's uranium-enrichment program; and the launching of another Taepodong-2 intercontinental ballistic missile from the Yunsong military complex on the west coast of North Korea. The North last launched a Taepodong-2 on April 5; it conducted its second nuclear test in the last three years on Memorial Day.

The intelligence community only learned of North Korea's plans this week, prompting CIA to alert senior officials. Asked who would be briefed on this kind of data, a source told FOX News: "The top people: POTUS, DNI." "POTUS" is acronym for the president of the United States; "DNI" refers to the director of the Office of National Intelligence.
We'll see where this goes. At some point Obama will have to deal with North Korea on a serious one-on-one basis. The good news is even China is willing to listen to the consept of increased sanctions on Pyongyang at this point, as they are just as worried about Kim Jong-Il as the rest of the world. Russia too sees North Korea as a serious threat to their western borders.

All this temper tantrum action may actually galvanize the world to do something.


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