Mirengoff Out At Powerline

James Meggesto:

As an enrolled member of the Onondaga Nation; as an attorney who has dedicated his life and law practice to the representation of Indian tribes, tribal organizations and tribal interests; and as a partner in the American Indian law and policy practice at Akin Gump Strauss Hauer & Feld LLP, I was shocked, appalled and embarrassed by a recent Web posting by another Akin Gump partner, Paul Mirengoff, who posted on his personal blog an insensitive and wholly inappropriate criticism of the use of a Yaqui prayer as the invocation to the recent memorial service held in Tucson, Arizona. As soon as I and the firm became aware of this posting, the firm took immediate action to deal firmly with this unfortunate situation. Accordingly, Bruce McLean, chairman of the firm, issued the following statement: “We sincerely apologize for the blog entry posted by Akin Gump partner Paul Mirengoff on his personal blog, powerlineblog.com. Akin Gump is neither affiliated with, nor a supporter of, the blog. We found his remarks to be insensitive and wholly inconsistent with Akin Gump’s values. Mr. Mirengoff regrets his poor choice of words and agreed to remove his post.”

The post was subsequently removed, and Mr. Mirengoff issued the following apology:

“In a post last night, I criticized the use of a Yaqui prayer as the invocation to the memorial service in Tucson. In doing so, I failed to give the prayer the respect it deserves. Although I did not intend this as a slight to the religion or to the Yaqui tribe, it can clearly be interpreted as one. For this, I sincerely apologize to my readers, to the Yaqui tribe, to all tribal leaders and Indian people and, specifically, to Carlos Gonzales who delivered the prayer. I regret my poor choice of words, and I have removed the post.”

Paul Mirengoff at Powerline:

I have made the decision to discontinue blogging at this time. I thank John and Scott for bringing me along on this ride and I thank our readers as well. I couldn’t have hoped for better writing partners or for better readers. Best regards to all.

Legal Insurrection:

I’m late to this, but the story has not received a lot of coverage in the conservative blogosphere.  Paul Mirengoff of Power Line blog no longer is of Power Line blog.

Mirengoff is an attorney at Akin Gump, a big law firm with a large presence in Washington, D.C., where Mirengoff works as a partner in the employment law group.

Mirengoff was one of the founders of Power Line.  While I have disagreed with the folks there from time to time, there is no doubt that the Power Line bloggers are among the biggest names in the conservative blogosphere and make a valuable contribution to the conservative movement.  Any disagreements I have with them are disagreements among teammates.

So why is Mirengoff no longer at Power Line?

It all resulted from this blog post Mirengoff made after the Tucson shooting memorial service, in which the service was opened with a prayer, of sorts, from an American Indian tribal leader:

“As for the ‘ugly,’ I’m afraid I must cite the opening ‘prayer’ by Native American Carlos Gonzales,” Mirengoff wrote. It “apparently was some sort of Yaqui Indian tribal thing, with lots of references to ‘the creator’ but no mention of God. Several of the victims were, as I understand it, quite religious in that quaint Christian kind of way (none, to my knowledge, was a Yaqui). They (and their families) likely would have appreciated a prayer more closely aligned with their religious beliefs.”

The original post has been taken down, and I can’t find a Google Cache version, but the post was picked up elsewhere and is available here.

It is clear that Mirengoff was setting up a “the good, the bad, and the ugly” type of structure (originating, I think, from the movie of the same name).  Mirengoff even put the word ugly in quotation marks.  This is a very common device signalling that Mirengoff did not literally mean “ugly” but was using the term in the context of the phrase he was parodying.

Mirengoff’s post was not an attack on American Indians, the Yaqui tribe, or the participation of the tribal leader in a tribal prayer.  The point of the post quite clearly was on the absurdity of not having a Christian prayer said for Christian victims.  The lack of a Christian (or Jewish) prayer was commented on and criticized by a lot of people, and I agree with that criticism.  The American Indian leader was welcome to participate with a traditional prayer, but if you were going to have a memorial service, why not also pay religious respect to the people you were mourning?

Robert Stacy McCain:

The lawyer who denounced Mirengoff, James Meggesto, is a member of the Onondago Nation of New York who was hired by Akin Gump in February 2007 – i.e., right after Nancy Pelosi’s Democrats took over Congress. Megesto was one of three lawyers, including Vanessa Ray-Hodge and Madeline Soboleff Levy, hired by the firm at that time as part of an expansion of Akin Gump’s “American Indian law and policy practice” according to a Feb. 23, 2007, press release. Akin Gump’s total haul from lobbying in 2007 was $32 million – an increase of 25% over the previous year.

You may recall that Pelosi and Democrats were elected in 2006 on a promise to clean up the “culture of corruption” in Washington. Exhibit A in the Democrats’ case against the GOP that year? Yeah: “Casino Jack” Abramoff’s shady dealings with Indian tribes.

So in criticizing that Yaqui prayer at the Tucson memorial, Paul Mirengoff wasn’t just being politically incorrect, he was also offending a lucrative segment of Akin Gump’s lobbying clientele, whom the firm had recently hired three lawyers to service. Small wonder that Mirengoff was likely forced to choose: Quit blogging at Power Line or quit working at Akin Gump.

Dan Riehl:

It would have been good to know about the Murkowski – Akin Gump connection when Mirengoff was pushing her over Miller in the Alaska Senate race. Filed under F for transparency.

Charlie Martin at PJ Tatler:

This is what Granddaddy used to call “pissing in the soup,” and I’m not a little bit surprised, nor particularly disturbed that Mirengoff’s firm would prefer he either not piss in the soup or get the hell out of the kitchen.  And frankly, I don’t agree with either McCain or Jacobson: I think a liberal blogger who offended a big client would have something large fall from a great height upon his head.

There’s one more point, though.  As one of the differently-religioned (I’m a Buddhist, and my mother, also a Choctaw, converted to Judaism some years ago — when I say “differently-religioned” I ain’t just messing around) I may be more sensitive than some others to the general religious assumptions we make socially. On the other hand, sometimes I wonder if people pay attention to what’s being said.  Consider, for example, if we translate this by substituting references to other religions and, well, tribes:

As for the “ugly,” I’m afraid I must cite the opening “prayer” by Rabbi Schmuel Greenblatt. It was apparently was some sort of Hebrew tribal thing, with lots of references to “the Creator” but no mention of God. Several of the victims were, as I understand it, quite religious in that quaint Christian kind of way (none, to my knowledge, was a Jew). They (and their families) likely would have appreciated a prayer more closely aligned with their religious beliefs.

I don’t mean to excuse the organizers of this debacle; it would have been appropriate to have had a Pastor, and a Priest, and a Rabbi, and hell, an Imam and whatever, if they were going to have a Yaqui shaman. (What makes this even harder is that ever since Carlos Casteñeda, every half-pint poseur has talked about learning from the Yaqui; who the hell knows if Gonzales had any better claim to be a medicine man than I do?)

But if anyone has trouble understanding why someone might be offended, go back and read the parallel universe excoriation of poor Rabbi Greenblatt’s little prayer.

James Joyner:

On the surface, it strikes me that Akin Gump overreacted to a minor incident.  But I don’t know enough about the firm’s clientele and business model to really evaluate. And, certainly, it has every right to control its public image, to include ensuring the partners don’t write embarrassing things in public fora.  Mirengoff is a labor law specialist with a distinguished record in the field and knows that.

Jeff Goldstein at Protein Wisdom:

Doesn’t matter, really. If we’re going to pretend that language works in a way that it clearly doesn’t — and to institutionalize that idea into our very epistemology — what we will end up with is the slow erosion of our speech, as more and more of it becomes subject to “interpretations” motivated by cynicism and a will to power.

This latest is just another dismal example of how precisely such a “democratic” method of “interpretation” can and will be used to diminish the individual at the whims of a motivated collective.

“There’s Nothing In The Constitution About That.”

Calvin Massey interviewing Justice Scalia for California Lawyer:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

Max Fisher at The Atlantic with the round-up

Amanda Terkel at Huffington Post:

For the record, the 14th Amendment’s equal protection clause states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Marcia Greenberger, founder and co-president of the National Women’s Law Center, called the justice’s comments “shocking” and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

“In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them,” she said. “But what if they want to pass laws that discriminate? Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them. And that’s a pretty shocking position to take in 2011. It’s especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

Greenberger added that under Scalia’s doctrine, women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools — all things that have happened in the past, before their rights to equal protection were enforced.

Ann Althouse:

HuffPo headlines: “Women Don’t Have Constitutional Protection Against Discrimination.” The writer, Amanda Terkel, quotes the 14th Amendment, and concludes, with unironic textualism: “That would seem to include protection against exactly the kind of discrimination to which Scalia referred.” Thanks for the analysis, Amanda.

Terkel also called up Marcia Greenberger, founder and co-president of the National Women’s Law Center, who professed to find Scalia’s opinion “shocking” — even though he’s been saying it for at least 15 years.

Scott Lemieux at Tapped:

Scalia has never been consistent about applying the principles expressed above. Nobody who voted for the 5th or 14th Amendments thought that they were prohibiting affirmative action, and yet Scalia has found that both amendments prohibit affirmative action in virtually all circumstances. Scalia also believes that Brown v. Board was correct, although very few of the persons who voted in favor of the proposal or ratification of the 14th Amendment believed that it prohibited racial segregation. When the originalist principles outlined above clash with (rather than reinforce) his political preferences, Scalia has no problem ignoring them.

Scalia’s answer when it comes to gender? That while the framers and ratifiers of the 14th Amendment did not think they were outlawing affirmative action or school segregation, they did think they were outlawing racial discrimination; they didn’t specifically discuss gender discrimination. The problem with this response is that Scalia’s choice to stop at this particular point on the ladder of abstraction is completely arbitrary. Scalia has already made clear in other cases that he doesn’t think that the concrete expectations of framers or ratifiers are binding. And the 15th Amendment demonstrates that the framers of the 14th could have limited the equal protection clause to racial discrimination, but they did not. So what basis does Scalia have for being certain that the 14th Amendment permits gender discrimination?

He doesn’t. Scalia’s belief that the 14th Amendment does not prohibit gender discrimination is a political choice in no way compelled by the text of the Constitution.

Jack Balkin:

Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That’s not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination– discrimination in basic civil rights against single women.

Moreover, the Constitution was subsequently amended. After the nineteenth amendment, the common law coverture rules made little sense. If married women had the right to vote, why did they not have the right to contract or own property in their own names? If we read the Fourteenth Amendment’s guarantee of civil equality in light of the Nineteenth Amendment, the guarantee of sex equality should apply to both single and married women. The conservative court during the Lochner era thought as much in a case called Adkins v. Children’s Hospital, decided immediately after the ratification of the Nineteenth Amendment.

Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution’s framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964’s ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia’s arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today’s world. That is to say, he doesn’t really believe in originalism either when it comes to a very wide array of cases concerning federal governmental power.

Second, if Scalia had really wanted to be faithful to the expectations and assumptions of the the adopters of the Fourteenth Amendment, he had no business joining the opinion in Bush v. Gore, because the Amendment was not intended to change state rules concerning the right to vote.

During the interview Justice Scalia says that he doesn’t even need to read the briefs to know what originalism permits, requires or forbids; but I would respectfully suggest he needs to read a bit more history.

Legal Insurrection:

Gee, Scalia must hate women.

Except that the headline is a good example of a half-truth.  Scalia’s point is the fairly standard originalist view that the 14th Amendment does not broadly apply to prohibit all forms of discrimination on the basis of sex.  Either sex.  It does not protect men against discrimination on the basis of sex, either.  The Supreme Court decision in Reed v. Reed, 404 U.S. 71 (1971) is read by some as offering broad protection on the basis of sex, but that is an overreading of a fairly limited opinion in which the Court found no rational basis for a state law giving preference to males in the appointment of estate administrators.  Other cases after Reed have applied a more strict scrutiny approach.  I assume Scalia disagrees with the Reed decision, not because he doesn’t like the result, but because of the approach;  this difference in approach does not make Scalia wrong, or hostile to women as the HuffPo headline suggested.

Scalia’s view is neither novel nor new.  That the Constitution does not address discrimination on the basis of sex as such was evidenced by the ultimately failed attempt to amend the Constitution to add an Equal Rights Amendment which would have added this provision:  “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

The Blog Of Legal Times

Cat White at Scholars and Rogues:

So how important is the Constitution for protecting people’s rights? Apparently not very. Scalia goes on to say, “You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.”

Unless you happen to be a corporation. Scalia et al continued the practice of defining corporations as persons with equal protection under the 14th Amendment (there is an article here on the history and meaning of the practice here–in short, define which “persons” are “citizens” and then grant protection to “citizens.”) Corporations are, of course, “legal persons” endowed by their creators with perpetual life and by the courts with inalienable rights by the 14th Amendment (as opposed to us “natural persons” who have limited life and apparently limited protection against discrimination by the 14th Amendment).

Apparently, “natural persons,” or at least female “natural persons” only need the protection of the laws, as Scalia said about the limits of the Constitution, “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

So who else does not need the additional protections of equality? Perhaps workers over 40, African-Americans, gays and lesbians?

Did corporations really need to be given the rights to control our elections through donations? What’s next, the corporate right to vote? Oh, right–they’d only get one vote that way, much better to control the whole process through funding.

The News Out Of Stockholm

The Jawa Report:

Forbes:

STOCKHOLM — Two explosions shook central Stockholm on Saturday, killing one person and injuring two, rescue officials said.Police spokeswoman Petra Sjolander said a car exploded near Drottninggatan, a busy shopping street in the center of the city. Shortly afterward, a second explosion was heard higher up on the same street, and a man was found injured on the ground. He was later pronounced dead.

…”I saw some people crying, perhaps from the chock,” he said. “There was a man lying on the ground with blood coming out in the area of his belly, and with his personal belongings scattered around him.”

Gabiro said the blast was “quite loud” and he saw smoke coming from the area where the man was lying.

Few details except one familiar item. The vehicle was stuffed with gas canisters, which I take as propane cylinders and gasoline. Gee I wonder if anyone has tried that before?And it appears they wanted to blow up Christmas, excuse me, Cross Worshiping Shoppers.

Must have been those pesky Lutherans protesting the commercialization of Christmas?

Michelle Malkin:

They’re at it again. Cartoon jihadists hit Stockholm yesterday in a suicide bombing. Two innocent bystanders were injured; the jihadist died of stomach wounds. All for the pretextual crime of “insulting” Islam.

Lisa Lundquist at The Long War Journal:

Swedish police confirmed that the owner of the car used in the bombing has been identified as Taimour Abdulwahab, born Dec. 12, 1981; today would be his 29th birthday, according to Swedish journalist Per Gudmundson. The car was purchased as late as November of this year.

There was an R.I.P. page on Facebook for Abdulwahab, created earlier today, noting he “died an heros dead in Stockholm” on Dec. 11. Abdulwahab’s own Facebook page, which appeared under the nom de guerre “Taimour Al-Abdaly,” is replete with references to militant Islam and videos from Iraq and Chechnya, and listed “favorites” include “Islamic Caliphate State” and Sheikh Abu Muhammad al Maqdisi, the radical Jordanian cleric and mentor of Abu Musab al Zarqawi. Within the past few hours, both Facebook pages have been taken down.

One of the links on Abdulwahab’s Facebook page shows photos of him in what appears to be Jordan.

The warning emailed to Swedish authorities shortly before the bombing yesterday contained a request for forgiveness from the plotter’s family for deluding them about a recent trip to the Middle East; the trip was made for terrorist training purposes.

“I never went to the Middle East to work or earn money. I went there for Jihad,” he stated.

Jim Hoft at The Gateway Pundit:

Suspected Swedish bomber Taimour Abdulwahab Al-Abdaly used the Muslim dating site Muslima.com in his search for a second wife. (Daily Mail) The Swedish suicide bomber was a trained jihadist who was recently looking for a second wife.
He was a father of two young children.

Legal Insurrection

Aaron Goldstein at The American Spectator:

In an interview with the BBC, Swedish Prime Minister Fredrik Reinfeldt said he is “not sure” if e-mail threats sent minutes before two bombs exploded in downtown Stockholm are connected to yesterday’s bombing which killed the attacker and injured two civilians.

The threat stated in part, “Our actions will speak for themselves, as long as you do not stop your stupid war against Islam.”

While Prime Minister Reinfeldt (the leader of Sweden’s ostensibly conservative Moderate Party) might not be sure if the e-mail threat and subsequent bombings are connected, an Islamist website is very sure.  The website, Shumukh al-Islam, identified the bomber as Taimour Abdulwahib Al-Abdaly.  The jihadist forum referred to Al-Abdaly as “our brother” and indicated that Al-Abdaly had “carried out the martyrdom operation in Stockholm.”

The Daily Mail reports that Al-Abdaly was born in Iraq, had moved to Sweden nearly twenty years ago and had attended university in England.  The British daily also indicated that Al-Abdaly had a history of expressing jihadist sympathies posting videos concerning the War in Iraq, Chechnya and Guantanamo Bay.

mistermix:

How in the hell do you detonate a huge car bomb, and a suicide bomb, in the middle of a busy shopping area a couple of weeks before Christmas without killing anyone but yourself? I’m sure we’ll learn every little detail about the person who did this, and maybe there are more attacks to follow, but at the moment this looks like more confirmation of DougJ’s thesis that terrorism is for losers.

James Joyner:

We’ve been lucky in two respects.  First, most of the terrorist attacks in the West since the 9/11 attacks — now more than nine years ago — have been spectacularly inept.  Second, we’ve thus far been spared by the classical suicide bombers of the type that have plagued Israel for something like a quarter century.

Given that the security measures needed to defend against the latter are so onerous that they’re intolerable in a free society — indeed, a society which would tolerate them for more than the occasional high value target could not reasonably be described as “free” — it’s only a matter of time.

Bruce McQuain at Q and O:

As is obvious, people are out to kill Swedes and they don’t much care who it is that’s unlucky enough to be around the next bombing attempt (of course, the probability of being killed in a terror attack in the West is probably akin to the probability of being struck by lightning as it is – but it still scares people excessively.).

So … they can roll over, give up their liberty and freedom and someday see their children grow up in an oppressive culture that doesn’t value anything the Swedes value today.   Or Sweden can take a deep breath, hitch up its courage, declare real war on radical Islam and the killers it creates and sweep them from their country.  By doing so they can also serve notice that the dominant culture – Swedish culture – will remain as such and that those who’ve immigrated from other lands and other cultures can adapt to that culture or leave.  Here’s a basic truth that needs to be heeded: You cannot be tolerant with the intolerant.

When those who would kill you declare war on you as these killers have, you have two choices – fight the war or surrender.  You can’t decide not to participate.  It doesn’t work that way.  Hopefully Sweden will understand that and choose the former over the latter.

Moe Lane

When A Town Called Homer Contains A Sign With The Words “Worst Governor Ever” On It, You Know The Simpsons Have Conquered The World

Shannyn Moore at The Huffington Post:

I’m really proud of my home town. When I say, “I’m just a girl from Homer” on my blog, radio or television show, I like to think it’s not so much self-deprecation as it is a friendly warning. When Palin signed off on her Facebook blog bashing Obama on Friday with “Sarah Palin in Homer, Alaska”, I laughed. Lady, if you think I give you a hard time, hang on.

Palin posted:

And here I am, thousands of miles away from DC out on a commercial fishing boat, working my butt off for my own business, merely asking the Democrat politicos and their liberal friends in the media: “What’s the plan, man?”, and they seem to feel threatened by my question. So, I’ll go back to setting my hooks and watching the halibut take the bait, and when I come back into the boat’s cabin in a few hours…

Strange. The Palin’s fishing business doesn’t include IFQ’s (Individual Fishing Quotas) necessary for commercially harvesting halibut. Her baiting hooks and keeping a manicure is laughable. Halibut are on the bottom of the ocean, hard to watch them “take the bait”. I hope she’s got a crew license. (Shrug).

Sarah Palin & company spent several days in Homer filming her “Sarah Palin’s Uh-laska” show. (Eyes rolled).

[…]

Risking accusations of being all “Wee-Wee’d Up“, one Homer woman made a sign in her shed. She then took the 30-foot-by-3-foot banner out to the boat harbor. It said “WORST GOVERNOR EVER“. Kathleen Gustafson is a teacher married to a local commercial fisherman. She felt like Sarah Palin had let the state down by becoming a dollar-chasing celebrity and ignoring the oath of office she’d sworn on a Bible.

Kathleen was motivated by the fact Palin was using the very place where her family makes a living to fortify the Palin personality cult — pretending to do the very thing they worked so hard to sustain. Initially, Kathleen just wanted to waste a little of the camera crew’s time, since Palin wasted so much of her time purporting to represent Alaska’s interests.

She didn’t imagine Palin would be so easy to draw out.

Saturday morning, Billy Sullivan helped Kathleen tape the banner up on his place of business at the top of the boat ramp. Then here she came. Sarah.

She couldn’t just walk by. Only a few fishermen and tourists would have seen the banner, but Sarah had to stop and protest. I spoke with Kathleen. She said she wanted Palin to know how she felt, but never dreamed she’d get the chance to say to her face, “You’re not a leader, you’re a climber!” Early in the conversation, Sarah actually winked at Kathleen in what seemed to be a case of eyelid Tourette’s Syndrome.

At one point, a Palin daughter chanted, “You’re just jealous”. Kathleen told Sarah she was disappointed that she dropped her responsibility to the state to became a celebrity. Palin said incredulously, “I’m honored. No, she thinks I’m a celebrity!” Really? So the camera crew wasn’t an indicator? How many times do you have to be on magazine covers to gain celebrity status? Something about camping with Kate Plus Eight in rain slickers seems, well, a little celebrity.

Billy Sullivan caught much of the interchange on his cell phone camera. The back of her security guard’s head and Todd Palin attempted to block Billy’s view, continually rotating like Tweedle Dee and Tweedle Dum. What were they afraid of? I guess that’s what happens when you’re filming a “celebrity”. He was even told by one of the Palin daughters, “You’re an A-hole”. Charming family values.

I asked both Billy and Kathleen which Palin daughter said what. Neither knew. They don’t have televisions and aren’t interested in Palin’s personal life and dramas.

In what has become typical tragic irony, Sarah initially claimed to support Kathleen’s First Amendment Rights. But as soon as Billy Sullivan walked toward the dock, one of Palin’s entourage tore down the sign to great applause from her group.

Todd Palin approached Billy (who owns a business called Dockside Fish and buys halibut on that dock) and asked him to get out of the Discovery crew’s shot. “You just can’t get enough of her, can you?” he asked. An Alaska State Trooper told Billy he should call the Homer Police Department and report the trespassing and destruction of property.

What the Palin folks don’t seem to understand is simple; if Fred Phelps gets to hold his hateful signs up at military funerals, Billy should be able to put Kathleen’s “WORST GOVERNOR EVER” banner on his building and not have a Palin goon tear it down.

Max Fisher at The Atlantic

Michael Scherer at Swampland at Time:

In the new issue of Vanity Fair, White House communications director Dan Pfeiffer is quoted making the following observation: “What they teach you on the first day of press-secretary school is to worry about blowing something up by giving attention to it. … ‘Don’t blow something up.’” He goes on to explain that those rules no longer apply. With the Internet, the story will blow up anyway. You have to respond.

Sarah Palin, apparently, agrees. Sarah Palin’s Facebook page is now promoting this video, which I was alerted to because of her Twitter feed.

This is exactly the sort of low-information, high-emotion, tracker gotcha carnival act moment that plays really well in the political entertainment media–cable, internet and talk radio. If Palin was a Democrat, Rush Limbaugh and Sean Hannity could fill their Tuesday shows ranting about nothing else. As it happens, I’ll place my money on MSNBC for the most replays, and will bet on well more than 100,000 YouTube views by tomorrow at noon.

Warner Todd Huston at Publius Forum:

This supposed “eye rolling” occurs after the woman told the Governor that she was a teacher (about 1:10 into the video). Many of the left-media are claiming that Palin rolls her eyes and gives a “knowing glance” to her supporters as if to say, “oh, a teacher, now we know this constituent is a left-wing, loony.”

But if you look at the video closely there is no “eye rolling.” The Gov. does look at her supporters and does give a sort of shrug-like look, but one has to assume and read into what that all means because the Gov. does not actually say anything to inform anyone of what she was thinking at that moment. Nor does she make an obvious face to inform. A look and a slight grin does not adequately reveal her thinking. One has to read her mind to really know what she was thinking at that instant.

But then, the Old Media are experts at mind reading, right? They are also experts at creating the news instead of reporting on it. One has only to remember the “fake but accurate” news as reported by Dan Rather of G.W. Bush’s AWOL. It never happened, of course, but Rather had all the fake documents to prove it regardless.

For that matter, we have the story of Palin’s non existent book-banning in Wasilla and the thousands of Trig-truther stories that continue to be circulated by the Old Media to prove the BS that is treated like fact among these writers of fiction.

But, above all, this shows the pettiness of the Old Media. The fact that the Old Media is attacking Gov. Palin for “eye rolling” is evidence of this.

William Jacobson at Legal Insurrection:

These deranged people now are creating a fauxtroversy over whether Sarah Palin — when contronted with a protester who identified herself as a teacher — rolled her eyes.

Really.

• Think Progress runs this headline, Palin laughs and rolls her eyes when demonstrator says she’s a teacher.
• New York Magazine chimes in Did Sarah Palin Roll Her Eyes at Teaching?
• Towleroad declares, Watch: Sarah Palin Mocks Teacher Who Confronts Her with ‘Worst Governor Ever’ Banner

Even Politico, proving that it too leaves no eye rolling unturned, describes the encounter as such:

“What do you do here?” Palin asked.“I’m a teacher,” Gustafson responded, to which Palin appears to roll her eyes.

Here is part of Palin’s response:

The LSM has now decided to use this brief encounter for another one of their spin operations. They claim I – wait for it – “appear to roll my eyes” when the lady tells me she’s a teacher. Yes, it’s come to this: the media is now trying to turn my eyebrow movements into story lines. (Maybe that’s why Botox is all the rage – if you can’t move your eyebrows, your “eye rolling” can’t be misinterpreted!) If they had checked their facts first, they would have known that I come from a family of teachers; my grandparents were teachers, my father was a teacher, my brother is a teacher, my sister works in Special Needs classrooms, my aunt is a school nurse, my mom worked as a school secretary for much of her professional life, we all volunteer in classrooms, etc., etc., etc. Given that family history, how likely is it that I would “roll my eyes” at someone telling me that they too work in that honorable profession? Stay classy, LSM.

Jim Hoft at Gateway Pundit:

The poor little unhinged leftists had their panties in a bunch today after Sarah Palin confronted a far left loon for her rude and aggressive sign in Homer, Alaska.

The leftists were outraged that Sarah Palin had the nerve to confront this angry “teacher.” Teachers should be respected.

It’s just too bad she’s not a teacher.
Kathleen Gustafson is a singer in a drag queen band.

(HOMER TRIBUNE/Randi Somers) – Director Kathleen Gustafson (left) steps in to provide harmony as Hedwig (Atz Lee Kilcher) polishes up his performance at Pier One on Aug. 28.

Kathleen Guftafson is not a teacher. She’s a theater tech… And a liar.

You just can’t make this stuff up.

UPDATE: The Palin-haters now claim that “theater tech” is the name of some class they teach in Alaska.
Sure it is… Keep spinning libs.

Doug J. on Hoft:

The CountertopBoating (or is it SwiftCountertopping?) of that Palin protester continues at Gateway Pundit (via). During the Frost debacle, after it was revealed that the countertops were concrete, not granite, we were told that was even worse since concrete is more expensive than granite. If it had been alleged that they were marble, we would have learned that concrete is more expensive than marble too. This time, we will likely learn that teaching Theater Tech is worse than singing in a drag band, since Theater Tech teachers earn more than drag band singers, at least in Alaska.

The Two Propositions Of The Day: Proposition 8

Andrew Sullivan with the ruling

Marc Ambinder:

Here’s what you need to know about Judge Vaughn Walker’s decision invalidating California’s Proposition 8, a referendum, passed by voters, that banned same-sex marriage. The decision itself will be appealed, and Walker’s reasoning could serve as the basis for argument at the appellate level — or, the appeals court could decide to argue the case a completely different way.

What matters are the facts that Walker finds. Why? As Chris Geidner notes, “[the] judge or jury who makes the findings of fact, however, is given deference because factual determinations are aided by the direct benefit of the judge or jury at trial. On appeal, Judge Walker’s findings of fact will only be disturbed if the appellate court finds any to be clearly erroneous.”

Walker, in his decision, writes that “Proposition 8 fails to advance any rational basis in singling out gays and lesbians for denial of a marriage license.”  He evaluates as credible witnesses the panel of experts who testified against Proposition 8, and finds fault with the credentials of several witnesses who testified against same-sex marriage, including David Blankenhorn, President of the Institute for American Values.

“Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight,” Walker writes. “Blankenhorn gave absolutely no explanation why
manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered.”

Jacob Sullum at Reason:

The arguments for banning gay marriage are so weak, Walker said, that they fail even the highly deferential “rational basis” test, which applies in equal protection cases that do not involve a “suspect classification” such as race. “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” he wrote. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples.”

The decision is bound to be appealed and may ultimately reach the Supreme Court. The text of Walker’s opinion is available here. The Los Angeles Times has excerpts here. I discussed the equal protection argument for federal recognition of state-approved gay marriages here and here. More to come.

Rachel Slajda at Talking Points Memo:

In his findings of fact, Walker pointed out that California “has never required that individuals entering a marriage be willing or able to procreate.”

He also notes that slaves were unable to marry.

“The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained,” he wrote.

Walker also noted that past marriage inequalities have included the prohibition of interracial marriage and coverture, in which a woman’s identity is subsumed by her husband’s.

Chris Rovzar at New York Magazine

The Brad Blog:

Great news for real conservatives who believe in the U.S. Constitution and its guarantee of equal protection under the law! A U.S. District Court Judge, first nominated by Ronald Reagan and then appointed under George H.W. Bush, has struck down CA’s Prop 8 which added an amendment to the state constitution banning same-sex marriage equality. The state’s majority Republican-appointed Supreme Court had previously found no basis for banning same-sex marriage in the CA constitution. That finding was, in effect, overturned at the ballot box in November 2008 by Prop 8 which ended same-sex marriage in the state and left thousands of marriages in limbo until today’s finding.

Jim Newell at Gawker:

CNN is going to gay bars in San Francisco on TV right now, for reactions. (Update: No one was in the gay bars so they stopped. Lame empty gay bars!)

You can read the full decision here. The judge found it unconstitutional under both the due process and equal protection clauses. The ruling is expected to be appealed and could end up at the Supreme Court.

Steve Benen:

The full ruling from Judge Walker, an appointee of President H.W. Bush, is online here.

Note, the case will now go to the 9th Circuit Court of Appeals, which tends to be pretty progressive. Many legal experts I’ve spoken to expect the Supreme Court to eventually hear the case.

In the meantime, the decision is heartening. The arc of history is long, but it continues to bend towards justice.

Jesse Zwick at The Washington Independent:

Looking ahead, it will be interesting to see what kind of role the issue of same-sex marriage, so incendiary in California in 2008, will play in the midterm elections in the state this November. The Courage Campaign, a progressive online organizing network based in California and formed partly in response to the passage of Prop 8, has been busy pointing out the role of the National Organization of Marriage (NOM), the main nonprofit behind the passage of Prop 8, in backing California candidates like GOP senate hopeful Carly Fiorina.

“In NOM, Carly Fiorina has aligned herself with a fringe group that relies on lies and fear to advocate discrimination and second-class citizenship for millions of loving American families,” Courage Campaign Chairman and Founder Rick Jacobs said in a press release. “Bigotry is not a family value and it has no place in the United States Senate.”

The National Organization of Marriage, already under fire for failing to disclose its donors to state election officials in Iowa and Maine, has now joined up with the Latino Partnership for Conservative Principles, an initiative of American Principles in Action, and the Susan B. Anthony List, a pro-life women’s network, to back Fiorina through the “Tus Valories” (Your Values) Campaign, an independent expenditure on the part of American Principles in Action.

bmaz at Firedoglake:

The common wisdom is that the prospects for upholding Judge Walker’s decision in the 9th Circuit are good. I agree. However, the common fear is that the ever more conservative and dogmatic Roberts Court will reverse and ingrain the discrimination, inequality and hatred of Proposition 8 and its supporters deep into American law and lore. I am much more optimistic this is not the case.

As the inestimable Linda Greenhouse noted recently, although the Roberts Court is increasingly dogmatically conservative, and Kagan will move it further in that direction, the overarching influence of Justice Anthony Kennedy is changing and, in some ways, declining. However, there is one irreducible characteristic of Justice Kennedy that still seems to hold true; she wrote of Kennedy:

…he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.

The money quotes of the future consideration of the certain appeal and certiorari to come on Judge Walker’s decision today in Perry v. Schwarzenegger are:

Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”
……
In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.

So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line.

I believe that Linda is spot on the money with her analysis of what drives Anthony Kennedy in his jurisprudence. And this is exactly what his longtime friend, and Supreme Court advocate extraordinaire, Ted Olson will play on and argue when the day arrives. It is exactly what Vaughn Walker has ingrained in to and framed his extraordinary decision today on.

Today is one of those rare seminal days where something important and something good has occurred. Fantastic. The beauty and joy of equality, due process and equal protection under the Constitution of the United States of America.

UPDATE: Dahlia Lithwick at Slate

Orin Kerr

Ilya Shapiro at Cato

Tom Maguire

William Duncan at NRO

Eugene Volokh

UPDATE #2: James Taranto at WSJ

Scott Lemieux

Dan McLaughlin at Redstate

Jim Antle in The American Spectator

UPDATE #3: David Frum at CNN

Steve Chapman at Reason

UPDATE #4: Legal Insurrection

Allah Pundit

Susan Enjoins, The Right Sphere Reacts

Tom Diemer at Politics Daily:

A federal judge has blocked a section of a controversial Arizona immigration law that empowered local police to check the immigration status of suspects they detain for other offenses, and also a requirement that immigrants carry identification papers at all times.

U.S. District Judge Susan Bolton, considering several challenges to the polarizing state law — including a lawsuit filed by the Obama administration — left other sections in place, according to the New York Times. It is supposed to take effect Thursday.

Lawyers for Arizona Gov. Jan Brewer are expected to appeal the ruling on a law that raised a furor across the country among both those favoring a crackdown on illegal immigration and others who believed the law was a violation of civil liberties and would lead to racial profiling of Hispanics .

John McCormack at The Weekly Standard

Daniel Foster at The Corner:

The preliminary ruling by Judge Susan R. Bolton of the U.S. District Court in Arizona enjoins the meatiest parts of the bill, putting their enactment on hold while the issue is slugged out in the courts.

The court blocked sections of SB1070 that would: require police to make “reasonable attempts” to determine the immigration status of persons stopped under suspicion of a crime; authorize police to arrest persons under probable cause that they have committed infractions that could lead to deportation; make it a crime for aliens not to carry immigration papers; make it a crime for an illegal aliens to apply for work.

The parts of the bill not enjoined by the ruling  include fairly anodyne provisions that make it easier for Arizona citizens and officials to help enforce federal immigration law, along with amendments to criminal statutes dealing with a number of other immigration-related crimes.

Ed Morrissey:

A temporary injunction gets put into place when a judge thinks that a court review has some likelihood of overturning a law in a full hearing.  That doesn’t amount to a decision on the merits, but it does indicate that Bolton thinks the Department of Justice can make a case for blocking the law.

What will be interesting will be to see whether this impacts public opinion.  The Obama administration has taken a beating in the polls on this issue, with poll after poll showing majorities of Americans supporting the Arizona law.  A temporary injunction on portions of the bill may get some people rethinking the issue, but I’d be surprised if there was any substantial movement. If a judge later rules against the law after a full hearing, it might change feelings about the law specifically, but probably not about enforcement.

I’d also expect the White House to claim this as vindication, but only because they have been utterly tone-deaf on this issue for the last three months.  They should wait on the I-told-you-so for the full hearing.

Michelle Malkin

Mark Krikorian at The Corner:

It’s no surprise that key parts of the Arizona immigration law were just suspended by Judge Bolton, pending the full trial. Assuming the state doesn’t give up, which it won’t, everyone understood this would take several years and reach the Supreme Court. It’s a stupid way to make policy, but with ACLU lawyers (both those inside and those outside the government) fanatically committed to open borders, there’s no alternative.

William Jacobson at Legal Insurrection:

The decision has to be viewed as a near complete victory for opponents of the law, as it restricts the state from routine and compulsory checks of immigration status as a matter of legislative mandate.

The decision would not, as I read it, prevent police from checking immigration status in a particular case, but would prevent a statewide system to do so.

The result of the decision will be to have a chilling effect on law enforcement officers who, in the absense of the law, would have checked immigration status based on reasonable suspicion anyway. Enforcement of immigration laws in Arizona, as a result of the decision, will be even more difficult than prior to S.B. 1070.

The only portions of the law upheld were:

A.R.S. § 13-2929: creating a separate crime for a person in violation of a criminal offense to transport or harbor an unlawfully present alien or encourage or induce an unlawfully present alien to come to or live in Arizona

and

A.R.S. § 28-3511: amending the provisions for the removal or impoundment of a vehicle to permit impoundment of vehicles used in the transporting or harboring of unlawfully present aliens

[Note to readers: The analysis above has been adjusted from the original as time permitted a more complete reading of the decision]

Update: My thoughts on the result, Helplessness and Anarchy

Dave Poff at Redstate:

I just can’t stop myself…I feel like that kid in church that just loses it when his big brother does something goofy in the middle of the sermon…

So, if I have this right, what this “Judge” has just told us is that the time spent while we wait for Law Enforcement to “run” our licenses and plate numbers is time during which our liberties are being restricted. Please let me be the next white guy to get pulled over so I can tell a State Trooper he is not allowed to run my numbers because it would be a burden on me, and it would restrict my liberty…that right there is made of teh awesome…but wait! There’s more:

Gisela and Eduardo Diaz went to the Mexican consulate in Phoenix on Wednesday seeking advice because they were worried about what would happen to their 3-year-old granddaughter if they were pulled over by police and taken to a detention center.

“I knew the judge would say that part of the law was just not right,” said Diaz, a 50-year-old from Mexico City who came to Arizona on a since-expired tourist visa in 1989. “It’s the part we were worried about. This is a big relief for us.”e-expired tourist visa…hunh-nothing wrong with THAT now, is there?

You do the math there folks? Here since 1989 on a since-expired tourist visa…hunh-nothing wrong with THAT now, is there? And of course, Judge Bolton steps in it even deeper by suggesting:

“There is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new (law),” Bolton ruled. She added that a requirement of the law that police determine the immigration status of all arrested people will prompt legal immigrants to be “swept up by this requirement.”

Just how will we wrongfully arrest legal aliens? Never mind; I’m running out of popcorn.

Don’t miss the hilarious sideshow via the LA Times about Union thugs and pro-Federal-law-violation-by-non-Americans activists…caravaning to AZ to protest the law that never made it to the streets of AZ because of this so-called federal Judge.

Check the calendars folks, and wait for the date to be published for the appeals process…I take cash and credit cards… I BET the appeals will be delayed until that magical and mysterious date of November 3, 2010…a day AFTER all those illegal votes can be cast to keep Democrats in office for two MORE years of doing nothing about the problem they created in the first place.

Not Every Explosive Tape Contains Mel Gibson Melting Down

Andrew Breitbart at Big Government:

We are in possession of a video from in which Shirley Sherrod, USDA Georgia Director of Rural Development, speaks at the NAACP Freedom Fund dinner in Georgia. In her meandering speech to what appears to be an all-black audience, this federally appointed executive bureaucrat lays out in stark detail, that her federal duties are managed through the prism of race and class distinctions.

In the first video, Sherrod describes how she racially discriminates against a white farmer. She describes how she is torn over how much she will choose to help him. And, she admits that she doesn’t do everything she can for him, because he is white. Eventually, her basic humanity informs that this white man is poor and needs help. But she decides that he should get help from “one of his own kind”. She refers him to a white lawyer.

Sherrod’s racist tale is received by the NAACP audience with nodding approval and murmurs of recognition and agreement. Hardly the behavior of the group now holding itself up as the supreme judge of another groups’ racial tolerance.

Ed Morrissey:

Actually, if Sherrod had a different ending for this story, it could have been a good tale of redemption. She almost grasps this by initially noting that poverty is the real issue, which should be the moral of the anecdote. Instead of having acted on this realization — and perhaps mindful of the audience — Sherrod then backtracks and says that it’s really an issue of race after all. It certainly was for Sherrod, who admits that “I didn’t give him the full force of what I could do.” Notice that the audience doesn’t exactly rise as one to scold Sherrod for her racism, but instead murmurs approvingly of using race to determine outcomes for government programs, which is of course the point that Andrew wanted to make.

Andrew has a second video, which is more relevant to the out-of-control expansion of the federal government than race. Sherrod in the same speech beseeches her audience to get work in the USDA and the federal government in general, because “when was the last time you heard about layoffs” for government workers? If Sherrod is any example, it’s been too long.

Doug Powers at Michelle Malkin’s:

We interrupt this “Tea Partiers are so incredibly racially biased” broadcast for the following update:

Days after the NAACP clashed with Tea Party members over allegations of racism, a video has surfaced showing an Agriculture Department official regaling an NAACP audience with a story about how she withheld help to a white farmer facing bankruptcy — video that now has forced the official to resign.

The video posted at BigGovernment that started it all is here if you haven’t seen/heard it yet.

Breitbart claims more video is on the way.

We now return you to your regularly scheduled “Tea Partiers are so incredibly racially biased” broadcast.

Tommy Christopher at Mediaite:

As it’s being presented, the clip is utterly indefensible, and the NAACP was quick to denounce Sherrod:

We are appalled by her actions, just as we are with abuses of power against farmers of color and female farmers.

Her actions were shameful. While she went on to explain in the story that she ultimately realized her mistake, as well as the common predicament of working people of all races, she gave no indication she had attempted to right the wrong she had done to this man.

The clip that’s being promoted is obviously cut from a larger context, and while this is often the dishonest refuge of radio shock jocks, in this case, it makes a real difference. Here’s what Sherrod told the Atlanta Journal-Constitution:

But Tuesday morning, Sherrod said what online viewers weren’t told in reports posted throughout the day Monday was that the tale she told at the banquet happened 24 years ago — before she got the USDA job — when she worked with the Georgia field office for the Federation of Southern Cooperative/Land Assistance Fund.

Sherrod said the short video clip excluded the breadth of the story about how she eventually worked with the man over a two-year period to help ward off foreclosure of his farm, and how she eventually became friends with him and his wife.

“And I went on to work with many more white farmers,” she said. “The story helped me realize that race is not the issue, it’s about the people who have and the people who don’t. When I speak to groups, I try to speak about getting beyond the issue of race.”

Sherrod said the farmer, Roger Spooner of Iron City, Ga., has since died.

It doesn’t seem that Ben Jealous or Agriculture Secretary Tom Vilsack are aware that Sherrod wasn’t working at USDA when this occurred, or that she did, in fact, help the farmer in question. That changes everything about this story, including the reaction of the crowd. The entire point of the story is that her actions were indefensible.

If what Sherrod says is true, this is not a story about grudgingly admitting that even white folks need help, but rather, a powerful, redemptive cautionary tale against discrimination of any kind. Both the AJC and Mediaite are working to locate a full video or transcript of the event.

This incident is being posed as the right’s answer to the NAACP resolution against “racist elements” in the Tea Party. This story also comes at a time when the New Black Panther Party has been thrust into the spotlight by Fox News (with predictable results), and debate rages over an Arizona immigration law that many say encourages racial profiling.

This is precisely the danger of ideologically-driven “journalism.” It is one thing to have a point of view that informs your analysis of facts, but quite abother when that point of view causes you to alter them.

David Kurtz at Talking Points Memo:

The 82-year-old wife of the white Georgia farmer who was supposedly discriminated against some quarter century ago by the black USDA official forced to resign this week — if the video released by Andrew Breitbart’s Big Government and re-run by Fox is to be believed — is now confirming that in fact Shirley Sherrod saved her and her husband’s farm from bankruptcy and is a “friend for life.”

CNN also spoke with the farmer’s wife and with Sherrod. Rachel Slajda has more.

Kevin Drum:

In a second video, BigGovernment.com says “Ms. Sherrod confirms every Tea Partier’s worst nightmare.” Although this is ostensibly a reference to a joke she made about no one ever getting fired from a government job, that’s not really every tea partier’s worst nightmare, is it? On the other hand, a vindictive black government bureaucrat deciding to screw you over because you’re white? Yeah, I’d say that qualifies.

This is just appallingly ugly, and the White House’s cowardly response is pretty ugly too. This is shaping up to be a long, gruesome summer, boys and girls.

Atrios:

One of the under reported stories of the 90s was just how much Starr’s merry band of lawyers totally fucked over relatively lowly White House staffers in the Great Clinton Cock Hunt. That was largely through subpoenas and lawyer bills, but lacking subpoena power the Right has now turned to a credulous news media and the power of selectively edited video to go after random government officials.

Apparently Glenn Beck and Andrew Breitbart rule Tom Vilsack’s world. Heckuva job.

Charles Johnson at Little Green Footballs:

Andrew Breitbart: the heir to Joseph McCarthy, destroying people’s reputations and jobs based on deliberately distorted allegations, while the rest of the right wing blogs cheer. Disgusting. This is what has become of the right wing blogosphere — it’s now a debased tool that serves only to circulate partisan conspiracy theories and hit pieces.

UPDATE at 7/20/10 8:33:55 am:

Note that LGF reader “teh mantis” posted a comment last night at around 6:00 pm that made exactly these points about Breitbart’s deceptive video, in this post.

UPDATE at 7/20/10 9:00:01 am:

It’s disturbing that the USDA immediately caved in to cover their asses, and got Sherrod to resign without even hearing her side of the story; but also expected. That’s what government bureaucrats do. And they didn’t want the USDA to become the next ACORN.

But it’s even more disturbing that the NAACP also immediately caved in and denounced this woman, in a misguided attempt to be “fair.” The NAACP is supposed to defend people like this. They were played by a con man, and an innocent person paid the price.

UPDATE: Rachel Slajda at TPM

The Anchoress at First Things

Caleb Howe at Redstate

Digby

Tom Blumer at The Washington Examiner

David Frum at The Week

Erick Erickson at Redstate

Jonah Goldberg at The Corner

Ta-Nehisi Coates

Jamelle Bouie at The American Prospect

UPDATE #2: Dan Riehl at Human Events

Noah Millman at The American Scene

Scott Johnson at Powerline

Victorino Manus at The Weekly Standard

Andy Barr at Politico

UPDATE #3: More Johnson at Powerline

Jonathan Chait at TNR

Bill Scher and Conor Friedersdorf at Bloggingheads

UPDATE #4: Eric Alterman at The Nation

Ta-Nehisi Coates

Legal Insurrection

Ed Morrissey

UPDATE #5: Ben Dimiero and Eric Hananoki at Media Matters

UPDATE #6: Bridget Johnson at The Hill

UPDATE #7: Kate Pickert at Swampland at Time

Read My Lips! This Is A Tax, Not A Mandate!

Robert Pear at NYT:

When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”

And that power, they say, is even more sweeping than the federal power to regulate interstate commerce.

Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.

Under the legislation signed by President Obama in March, most Americans will have to maintain “minimum essential coverage” starting in 2014. Many people will be eligible for federal subsidies to help them pay premiums.

In a brief defending the law, the Justice Department says the requirement for people to carry insurance or pay the penalty is “a valid exercise” of Congress’s power to impose taxes.

Legal Insurrection:

There were two important developments recently in the continued unraveling of the Obamacare public relations BS.

First, the Obama administration cemented its legal position that the health care mandate is a tax, which means that Obama is raising taxes on people making less than $250,000 a year contrary to his campaign promise.

Second, the promise that you could keep your doctor is evaporating as health insurers, in a desperate attempt to keep down premiums under the burden of Obamacare requirements, are reformulating their plans by limiting choice of physicians.

Read Obama’s Tax Lips

Read Obama’s lips: I will not raise taxes on anyone making less than $250,000 per year.

Read Obama’s lips: The health care mandate is not a tax, so even though people making less than $250,000 per year have to pay it, I have kept my promise.

Moe Lane at Redstate:

The individual mandate is a tax.  It has always been a tax, denials of the administration to the contrary.  And, as the article makes clear, the administration is now going to enthusiastically call it a tax in order to keep it from being thrown out as blatantly unconstitutional.  You see, the Commerce Clause argument falls down when you put too much pressure on it

Ed Morrissey:

That is exactly what the mandates do — regulate individual behavior in an area where the federal government has no jurisdiction and punish those who don’t exhibit favored choices, in this case buying comprehensive health insurance regardless of whether it makes sense for anyone.  This court will almost certainly take a dim view of the same attempt that the 1922 court struck down as a gross overreach by the government.

Doug Mataconis:

It’s worth noting in this regard that the provisions regarding the health insurance mandate and related penalties are now parts of the Internal Revenue Code, which in and of itself could be a powerful argument to the Court in favor of the mandate being a tax. Most importantly, though, if the Courts do accept the government’s argument that the mandate is actually a tax the legal challenges to health care reform are doomed, because the Courts have given Congress very broad authority under the General Welfare Clause.

Of course, President Obama has potentially opened himself up to a political problem by advancing this argument:

While Congress was working on the health care legislation, Mr. Obama refused to accept the argument that a mandate to buy insurance, enforced by financial penalties, was equivalent to a tax.

“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program “This Week.”

When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, “I absolutely reject that notion.”

Defending a proposed bill politically is different from defending it in Court, but, as Bruce McQuain notes, there’s potentially some hypocrisy here:

One has to assume they just plan on overwhelming the Court with as many “viable alternatives” as it takes to get their way.

Well, yea, but that’s sort of the definition of litigating. You put forward as many viable arguments as you can because you never know which one is going to persuade the Court to rule in your favor. Is the President really going to pay a political price for what the Dept. of Justice argues in a legal brief ? Personally, I don’t see it happening.

Personally, I find the idea of stretching the General Welfare Clause this far to be absurd and I think the Supreme Court has been far too deferential to Congressional assertions of power like this one. However, the fact of the matter is that Supreme Court precedent stretching back to the New Deal Era clearly justifies it. Unless the Court is willing to overrule about a century worth of precedent, the tax argument is a very strong one for the government.

Of course, even if the tax argument fails, there’s always the Commerce Clause, and a five year old opinion from Justice Scalia that seems to put a nail in any effort to challenge the law under that provision:

Reporting from Washington – Lawsuits from 14 states challenging the constitutionality of the new national healthcare law face an uphill battle, largely due to a far-reaching Supreme Court ruling in 2005 that upheld federal restrictions on home-grown marijuana in California.

At issue in that case — just like in the upcoming challenges to the healthcare overhaul — was the reach of the federal government’s power.

Conservative Justices Antonin Scalia and Anthony M. Kennedy joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients.

They said the Constitution gave Congress nearly unlimited power to regulate the marketplace as part of its authority “to regulate commerce.”

Even “noneconomic local activity” can come under federal regulation if it is “a necessary part of a more general regulation of interstate commerce,” Scalia wrote.

The decision throws up a significant hurdle for the lawsuit filed last week in federal court by 13 state attorneys — all but one a Republican.

Here’s the relevant section from Scalia’s concurrence in Raich:

The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.

The analysis is longer than this, obviously, but the principle that Scalia states still stands and, if that principle is applied in the challenges to the health care law, the Attorneys General and are Plaintiffs are going to be in a very tight spot to say the least, because its not hard at all to see what the arguments on the other side will be:

In the healthcare legislation, signed by the president Tuesday, Congress required virtually all Americans to have health insurance beginning in 2014. Those who fail to do so could be assessed a tax penalty of up to $750 per year.

Legislators argued that the “individual mandate” was necessary because it would undercut the insurance market if individuals could just opt out of having health insurance. Freeloaders could wait until they were hurt in an accident or contracted a disease and then demand insurance coverage for their “preexisting condition.”

The court’s ruling in the 2005 case, Gonzales vs. Raich, “is an enormous problem” for those who contend that the healthcare mandate is unconstitutional, said Simon Lazarus, a lawyer for the Washington, D.C.-based National Senior Citizens Law Center.

“It clearly says Congress has vast regulatory authority over interstate commerce,” he said.

Indeed, and they have a conservative Justice to thank for it.

Jonathan Adler:

UPDATE: Speaking of the legal challenges to health care reform, law professor Brad Joondeph of Santa Clara has launched the new ACA Litigation Blog: “A place to find news updates, legal analysis, and all official documents related to the states’ constitutional challenges to the Patient Protection and Affordable Care Act (as amended by the Health Care and Education Reconciliation Act of 2010).”

Let’s Return To The Burning Issue Of, Oh, One Month Ago, Part II

Josh Gerstein at Politico:

The federal government filed a lawsuit Tuesday aimed at blocking a controversial Arizona law that instructs local police and sheriffs to question and arrest anyone whom they suspect is in the country illegally.

The Justice Department lawsuit, filed in U.S. District Court in Phoenix, argues that the new state law violates the U.S. Constitution by usurping federal authority over immigration policy, traditionally the jurisdiction of the federal government.

“Arizonans are understandably frustrated with illegal immigration, and the federal government has a responsibility to comprehensively address those concerns,” Attorney General Eric Holder said in a statement yesterday. “But diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records will impact the entire country’s safety.

“Setting immigration policy and enforcing immigration laws is a national responsibility,” Holder said. “Seeking to address the issue through a patchwork of state laws will only create more problems than it solves.”

David Ingram at The Blog Of Legal Times:

“In our constitutional system, the federal government has preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress,” reads the introduction to the 25-page complaint (PDF).

Lawyers for the U.S. Department of Justice filed the complaint today in U.S. District Court for the District of Arizona. The lawsuit names as defendants the state of Arizona and Gov. Janice Brewer (R), in her official capacity.

Brewer has repeatedly defended the law as a necessary response to the federal government’s failure to control illegal immigration from Mexico, and she continued to draw support from allies nationwide, including in Washington, as the lawsuit was filed.

The lawsuit makes sweeping claims about the federal government’s power to develop immigration policy. It cites the federal government’s power under the Constitution to establish a “uniform Rule of Naturalization” — translating, it says, to the regulation of aliens within U.S. boundaries and to the terms and conditions for entry and continued presence.

With the State Department joining as a plaintiff, the lawsuit also cites the president’s authority over foreign affairs. “Immigration law, policy, and enforcement priorities are affected by and have impacts on U.S. foreign policy, and are themselves the subject of diplomatic arrangements,” it says.

Together with the complaint, the department is filing a 58-page motion (PDF) for a preliminary injunction. The law is scheduled to go into effect July 29.

Legal Insurrection:

Here is a copy of the Complaint just filed by the United States against Arizona seeking to invalidate S.B 1070, the Arizona immigration bill. Copies also of the Civil Cover Sheet, Summons to the the State of Arizona, and Summons to Gov. Jan Brewer.

The U.S. also filed a Motion for Preliminary Injunction, with 10 Exhibits. Visit my Scribd site for additional documents.

The case is assigned to Judge Neil V. Wake.

Michelle Malkin

Ed Morrissey:

It seems rather clear that the DoJ intended to get state and local law enforcement involved in immigration efforts.  Arizona’s law doesn’t set up the state as an adjudicator of the complaints, but merely requires police to check status and refer suspects to ICE when circumstances warrant.  It doesn’t violate federal prerogative at all, but instead forces the federal government to act responsibly to enforce the law.

Besides, this issue of pre-emption works the other direction.  Does this mean that state and local police have no jurisdiction to enforce federal drug laws if they don’t violate state or local law?  Terrorism?  Wire fraud?  If a court rules that referrals to federal agencies from state and local law enforcement are unconstitutional on the basis of pre-emption, it will make the Gorelick Wall look like a curb.

Furthermore, this is weak tea compared to the Obama administration’s rhetoric on the subject.  They have spent the last three months declaring this unconstitutional on the basis of discrimination.  If that were true, the government would have made that its primary argument.  The fact that they’re going with pre-emption means that they’re conceding that the discrimination argument never held water — and that their accusations of bigotry against Arizonans were nothing more than demagoguery.

Mary Katherine Ham at The Weekly Standard:

Perhaps it’s a better legal argument than a political one, but the federal government does seem to be opening quite the can of worms to argue that a state-level attempt to do what the federal government claims is its sole responsibility is uncalled for while that same government is spending time and energy suing Arizona while it continues to not live up to its responsibility.

Jim Antle at The American Spectator:

It is precisely the federal government’s failure to enforce its own immigration laws — and their incomplete border fencing that has redirected illegal immigrants to Arizona specifically — that would account for such referrals. Federal action would have made the Arizona law unnecessary But the Obama-led feds would rather crack down on Arizona than illegal immigration.

EARLIER: Let’s Return To The Burning Issue Of, Oh, One Month Ago

4th Time Around

Arthur Delaney at Huffington Post:

The Senate rejected Wednesday — for the fourth time — a bill that would have reauthorized extended benefits for the long-term unemployed, by a vote of 58 to 38. Democrats will not make another effort to break the Republican filibuster before adjourning for the July 4 recess.

By the time lawmakers return to Washington, more than 2 million people who’ve been out of work for longer than six months will have missed checks they would have received if they’d been laid off closer to the beginning of the recession.

Brian Beutler at Talking Points Memo:

Sen. Ben Nelson (D-NE) last night prevented his fellow Democrats from finally passing legislation to extend needed unemployment insurance benefits to out of work Americans. It was the third time the legislation, which has been repeatedly pared down and reshaped in the hunt for votes, has failed to overcome a filibuster. But it was the first time that success or failure rested on a single deciding vote. And because Nelson, the most conservative Democrat in the Senate, joined Republicans and blocked the bill, it will likely not pass until mid-July, after the Senate returns from Independence Day recess. By then Robert Byrd’s replacement will be seated, and Dems will have the votes they need to pass their jobs bill.

Here’s what happened.

The Senate was by all accounts done for the day, and any further attempts to extend unemployment insurance would have to wait another day. But at about 8 pm, Senate Majority Leader Harry Reid decided to give it one more shot and called the vote, which had to be held open to allow Senators caught unaware to reach the chamber. When it was all said and done, the final vote was 58-38 with three Republicans not voting.

Of course, it requires 60 votes to break a filibuster, meaning Democrats were two votes shy. So why does this fall on Ben Nelson? When a cloture vote fails, the Majority Leader often switches his vote from yes to no. But he’s not joining the filibuster. It’s a parliamentary maneuver that allows him to bring the issue back to the floor easily at a later time, without having to go through the longer process of filing for cloture again.

That’s what happened last night. With the death of Robert Byrd, Democrats have 58 voting members. Last night, they were joined by Sens. Susan Collins (R-ME) and Olympia Snowe (R-ME). That would have brought them to 60, breaking the filibuster…but Nelson said no. He’s opposed the legislation repeatedly on the grounds that it’s not completely paid for (though emergency extensions of unemployment benefits are often not paid for). He brought Democrats down to 59 votes — one short of the supermajority they needed — and because of that, Reid changed his vote, drawing the total down to 58.

A day earlier, Nelson released a long statement explaining his repeated opposition to the bill.

Steve Benen:

Here’s a statement from the senator’s office:

“The bill has been revised several times already and each time the deficit spending was less. Tough choices are possible and necessary to not add to the deficit,” Nelson said. “Some also say we need more emergency spending now to keep the recovery going. But in my view it could jeopardize the recovery and would add to our already enormous deficit, likely to be around $1.4 trillion for the second year in a row.”

This is simply incoherent. Nelson talks of “tough choices,” but chooses to emphasize the deficit over the economy. He also neglects to mention that he’s supported emergency funding for the jobless before, but is reversing course at a critically important time with a fragile economy.

But when Nelson says emergency spending “could jeopardize the recovery,” it sounds an awful lot like gibberish. The conservative Nebraskan has been deeply confused about this before, and his ongoing desire to emphasize the deficit over the economy is ridiculous. We’ve come to expect such nonsense from Republicans — the ones who got us into this mess, and who created the enormous deficit in the first place — but Nelson is supposed to know better.

Even if we take the senator’s statement at face value, it suggests Nelson should vote against extended unemployment benefits. It doesn’t explain, though, why he feels compelled to back a Republican filibuster. If he’s against the extension, fine, he can oppose it. But Ben Nelson is saying that jobless Americans have to suffer because he won’t even let the bill come to the floor for a vote.

It’s just indefensible.

Meredith Jessup at Townhall:

The GOP has, on numerous occasions, said they would vote on a stand-alone measure to extend unemployment benefits.  The Republicans also suggested–gasp!–that ol’ Harry Reid and Nancy Pelosi loosen up some of the 40 % of stimulus funds that have gone unspent to help the underemployed.

Neither of these scenarios were acceptable to Dems who wanted to load the measure up with lots of other items in a pathetic attempt to get the GOP on record as being “against assistance for out-of-work Americans.”  Democrats need all this kind of help they can get for November’s elections and the AP seems more than willing to oblige.

Digby:

And it’s not just the failure to extend the unemployment benefits, it’s the reasoning behind it. There is the Rand Paul/Sharron Angle “tough love” prescription, of course, which I suspect is far more common than people will admit. (I have actually heard several conversations about somebody’s “lazy uncle” who refuses to take a job that he thinks is “beneath him.”) And then there’s the projected deficit, which throughout the Bush years of unnecessary wars, tax cuts and giveaways to their rich contributors these people said not a word, being used as an excuse to destroy the safety net. I’m hard pressed to think of a more cynical move, although the Iraq war was a helluva test run for how you can convince people not to believe their lying eyes, so perhaps this is a natural next step.

I’m guessing some of it has to do with wealth inequality and the resulting distance between the haves and have nots in everyday society. When the people who do your nails and bag your groceries and bus your table aren’t fully visible in your busy world of IPods and Blackberries, perhaps you begin to think of them as pets who need training or children who require discipline. I don’t know. But something has gone terribly wrong and decent people had better wake up and realize that this radical, nihilistic right wing ideology that calls itself “conservatism” is now in the process of bringing the cruelty of its racist past into the 21st century and applying it to the entire middle and working class of this country.

UPDATE: Paul Krugman at The New York Times

William Jacobson at Legal Insurrection