Tag Archives: Marc Ambinder

DOMA Dies A Lawyered Death

 

US Department of Justice:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.   Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.   While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.   In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.   The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.   Given that conclusion, the President has instructed the Department not to defend the statute in such cases.   I fully concur with the President’s determination.

Marc Ambinder at The Atlantic:

The announcement by the Justice Department came just minutes before White House press secretary Jay Carney’s regular briefing. Carney took care to press upon reporters that the president’s personal view about DOMA — that it is unfair to gays and lesbians — is distinct from the decision. The announcement from the administration came because of a court-imposed deadline from the 2nd Circuit.

Carney also said that the U.S. government will still be a party to these cases to allow the courts to make a recommendation about constitutionality and to allow other interested parties, such as Congress, to defend the law if they wish.

“We recognize and respect that there are other points of view,” Carney said.

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

The president has won favor with the gay community recently by pushing for and winning repeal of the “don’t ask, don’t tell” policy for gays serving in the military, which the lame-duck Congress passed in December. At that time, Obama reiterated his support for repealing DOMA but did not take further steps.

Matt Welch at Reason:

The law is still in effect, but probably lost whatever chance it had of surviving a legal challenge. You can read Holder’s letter here.

Reason on DOMA here, including this piece from 1996 by Nick Gillespie. Excerpt:

It is a misguided attempt to define for all time an institution that is constantly, if slowly, evolving. Its supporters may think they can stop social evolution in its tracks and enforce a singular vision of the good society. But such people misunderstand the very nature of a free society and its dependence on choice and change. The Defense of Marriage Act may well have put off state recognition of same-sex marriage for the time being, but such laws can do precious little to keep things as they are. There can be little doubt that, ultimately, the government will be following IBM’s lead, even as IBM has followed its employees’.

William C. Duncan at The Corner:

There is something about the marriage issue that provokes an “any means necessary” approach from its proponents (among whom I believe we can count the president, notwithstanding campaign rhetoric to the contrary).

The president’s strategy, however distasteful, could be successful. In almost every successful same-sex-marriage case so far, the attorneys charged with defending the marriage laws either refused to do so (Iowa, Northern District of California) or made only pro forma defenses while conceding key points to the pro-redefinition side (Connecticut, California Supreme Court). Whether it is a good thing to have key social policies decided by lawyer inaction is an important question.

Presumably Congress can seek to intervene in the DOMA suits in order to defend the law. Maybe the federal courts need a public-defender program for statutes that have fallen out of favor with the elites in power.

Doug Mataconis:

It’s worth noting that when Judge Walker struck down California’s Proposition 8 last year, he used to lower “rational basis” test. Nonethless, Holder’s arguments in the letter are very similar to those Walker used in his opinion, and I won’t be surprised to see parts of this letter show up in appellatte briefs down the line as persuasive authority.

Personally, I think the entire act is unconstitutional, an opinion that is also shared by Bob Barr, who introduced the Act when he was a Member of Congress in the 1990s:

I’ve wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party’s presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.

In effect, DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including, immigration, Social Security survivor rights and veteran’s benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, “Decisions about marriage should be left to the states.” He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

The other problem with DOMA is that it essentially tells couples living in states where same-sex marriage, or civil unions, are legal that they can only live in states where the law is the same, or where their marriage will be recognized, which at this point constitutes less than 1/4 of the United States. It means a couple married in Iowa cannot move to any state in the American south without giving up all of their legal rights. This is exactly the kind of thing that the Full Faith And Credit Clause was designed to prevent. In fact, under current law, a marriage between a man and a woman that may not be legal in one state — such as a marriage between first cousins — will still be recognized as legal since it was legal under the laws of the state in which it took place. There is no rational reason why the individual liberty of gays and lesbians should be restricted in this manner.

Bryan Preston at PJ Tatler:

Does a president have the power to unilaterally declare laws passed by Congress and signed by his predecessors “unconstitutional?” This strikes me as setting an extremely dangerous precedent.

Kevin Drum:

This, by the way, is a good example why I’ve never joined in the general condemnation of conservatives for “reigniting the culture wars” whenever they introduce an abortion bill or somesuch. I’m on the opposite side of these conservative efforts, of course, but the fact is that liberals started the culture wars in the 60s and it’s something we should be proud of. So while I oppose the conservative side of the culture wars, I approve of the culture wars in general, and I applaud Obama and Holder for reigniting it last year when Congress repealed Don’t Ask Don’t Tell and for reigniting it in the case of DOMA today. Blacks, Hispanics, gays, women, the disabled and millions of others have benefited tremendously from the culture wars, and I’m happy to see it continue until there’s no more war to fight.

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Where Will Harold Ford Go Now?

Ben Smith at Politico:

The Democratic Leadership Council, the iconic centrist organization of the Clinton years, is out of money and could close its doors as soon as next week, a person familiar with the plans said Monday.

The DLC, a network of Democratic elected officials and policy intellectuals had long been fading from its mid-’90s political relevance, tarred by the left as a symbol of “triangulation” at a moment when there’s little appetite for intra-party warfare on the center-right. The group tried — but has failed — to remake itself in the summer of 2009, when its founder, Al From, stepped down as president. Its new leader, former Clinton aide Bruce Reed, sought to remake the group as a think tank, and the DLC split from its associated think tank, the Progressive Policy Institute.

But Reed left the DLC last year himself to serve as Vice President Joe Biden’s chief of staff, leaving Ed Gresser, a trade expert, to lead the group in the interim. Since then the board “hasn’t been able to find someone who wanted to come on in a permanent capacity,” a person familiar with the group’s woes said, with the central problem the difficulty of raising money for a Democratic group that isn’t seen as an ally of the White House.

Gresser declined to comment on the DLC’s future, and referred a call to From, who didn’t immediately respond to a message left with an assistant.

Jonathan Chait at TNR:

It’s hard to remember, but the whole rise of the progressive netroots was organized around opposition to the DLC, which liberals saw as Satan incarnate. Bill Clinton was an early member, and the DLC helped frame his presidential candidacy.

I always had mixed feelings about the group. I think it was about half innovative effort to counterbalance traditional Democratic interest groups, and half naked effort to suck up to corporate America and/or give contentless messaging cover to red state Democrats.

But for the main part, the DLC disappeared because its work was over. The remaking of the Democratic Party begun by Clinton held in place. The DLC floundered because it had nowhere else to go — having moved the party to the center, it could only advocate for the party is it stood in the Clinton and post-Clinton era, or advocate that it move further still toward the center. It became a an anachronism.

Ezra Klein:

What it hasn’t been able to do is adapt to success. It hasn’t mended relations with liberals, so it never could become the all-purpose Democratic think tank and holding pen that the Center for American Progress is. Its policy shop and messaging shops got a bit stale, which allowed upstarts like Third Way to pass it in influence. It continued picking fights with people like Howard Dean and Markos Moulitsas, which meant that when it got headlines, they weren’t necessarily good ones. It hasn’t nurtured and held onto the young talent that could help it build new constituencies or really update its thinking. It never figured out the Web.

But if I were Al From, the organization’s founder, I’d feel pretty good about myself. For better or for worse, the DLC won. That’s why potential donors and others are now comfortable letting it die.

Marc Ambinder at National Journal:

More prosaically, the DLC did something in 2006 to permanently alienate them from virtually the entire party: they endorsed Joe Lieberman’s re-election bid. Lieberman’s stalwart support for the war in Iraq and for President Bush was just about the biggest sin of all to Democrats of the era. Some issues are zero sum, and the DLC found itself on the wrong side of history, as least as far as the Democratic Party was concerned.
There are two other factors worth mentioning. One was that Big Labor became all the more important to helping Democrats get out the vote, and that made it more difficult for Democrats to affiliate with the DLC. The second was that the Netroots — Atrios and Daily Kos and Chris Bowers — thought the DLC’s “centrism” was equivalent to the politics of concession and compromise.
No question: the Netroots and progressive left are at the center of gravity for the Democratic Party as an institution. There is a distinction, though, between energy and influence. And it still isn’t clear how Democrats win the election without galvanizing the type of voters the DLC sought to attract. The group may be going away, but debates about its ideas will dominate politics for a long time to come.
The truth of the matter is that the DLCs function has been taken over by Third Way. Nobody needs to fear that the centrists aren’t going to be well represented in the Democratic Party. They run the place.
David Dayen at Firedoglake

Jim Geraghty at NRO:

Way back in 2005, Markos Moulitsas of the liberal Daily Kos was quite irked with the centrist Democratic Leadership Council, and declared:

Two more weeks, folks, before we take them on, head on. No calls for a truce will be brooked. The DLC has used those pauses in the past to bide their time between offensives. Appeals to party unity will fall on deaf ears (it’s summer of a non-election year, the perfect time to sort out internal disagreements). We need to make the DLC radioactive. And we will. With everyone’s help, we really can. Stay tuned.

He was going to make them “radioactive.” To think, if a conservative had said it, it would be considered encouraging dirty bomb attacks.

We scoffed. But no more. Apparently Kos really has perfected the promised radioactive superweapon. Ben Smith:

The Democratic Leadership Council, the iconic centrist organization of the Clinton years, is out of money and could close its doors as soon as next week, a person familiar with the plans said Monday…  Its website currently leads a Harold Ford op-ed from last November, titled, “Yes we can collaborate.” It lists as its staff just four people, and has only one fellow. Recent tax returns weren’t immediately publicly available, but returns from 2004-2008 show a decline in its budget from $2.6 million to $1.5 million, and a source said funding further dried up during the financial crisis that began nine months before Reed took over.

Could the long-promised superweapon be real? I felt a great disturbance in the Force, as if millions dozens of centrist Democrats suddenly cried out in terror and were suddenly silenced

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The End? Part II: Speech, Speech, Speech!

Max Fisher at The Atlantic with an early round up.

Marc Ambinder:

President Obama has asked the television networks for 15 minutes tonight, and he’s going to pack quite a bit of messaging into that short period of time. Why do we need a speech marking the end of the combat mission in Iraq? It’s because we’re going to need, according to Obama, to understand the future of the war in Afghanistan and the interconnectedness of foreign and domestic policy in a way that reflects what Obama was able to do in Iraq.

What did he do? He set a time-frame and stuck to it. Iraq will now begin to fend for itself. He promised during his presidential campaign that he would end the Iraq war “responsibly.” He will note tonight that his administration managed to withdraw 100,000 troops from Iraq “responsibly.” He will portray this as a major milestone in his presidency.

We forget how integral Sen. Barack Obama’s decision to oppose the Iraq war was to his own political awakening, and how many contortions Hillary Clinton had to untwist in order to justify her own support for the war authority, and how, by the day of the general election, given the success of the surge (or the success of JSOC’s counterterrorism efforts), Iraq was no longer a central voting issue. Voters seemed to exorcise that demon in 2006, when they voted Democrats into Congress.

A large chunk of the speech will be taken up by the president’s careful description of the sacrifices that a million U.S. soldiers and diplomats have made by their service in Iraq, and how 4,400 Americans did not come home.

Then, a pivot point: the Iraq drawdown has allowed the president to refocus attention on the threat from Al Qaeda worldwide, and he will mention that the terrorist network is degraded, albeit still capable of waging terrorist attacks and intending to do so.

He will note that the government will be able to reap a bit of a post-Iraq transition dividend, allowing the administration to invest more in job creation, health care, and education here at home. (Subtly, the point: Obama wouldn’t have gone into Iraq, so we wouldn’t have had to spend as much as we did.) It’s time, he will say, to build our own nation.

Kevin Drum:

Since it’s a slow news day, let’s mull this over. First take: can you imagine anything that would piss off the liberal base more than acknowledging that the surge worked? You’d be able to hear the steam coming out of lefty ears from sea to shining sea. Second take: Even if he decided to do it anyway, would it be worthwhile? If he wants to be honest, Obama would have to at least mention all those other factors that Ambinder mentions, namely that the reduction in violence in 2007 was quite clearly the result of 4 S’s: Surge, Sadr ceasefire, Sectarian cleansing, and Sunni Awakening. But is this too much to talk about? And would it seem churlish to acknowledge the surge and then immediately try to take some of the credit away from it?

Third take: Forget it. Not only would mentioning the surge piss off liberals, but it would also imply some kind of “victory” in Iraq, and surely Obama can’t be dimwitted enough to come within a light year of claiming that, can he? Of course not. Not with sporadic violence back in the news and Iraqi leaders still stalemated on forming a government five months after the March elections.

So I’ll predict no direct mention of the surge. And since I’m usually wrong about this kind of stuff, I suppose you should try to lay down some money right away on Obama mentioning the surge tonight. But I still don’t think he’ll do it.

David Corn at Politics Daily:

Why is Barack Obama giving a speech on Iraq?

To mark the end of U.S. combat missions in the nation George W. Bush invaded over seven years ago, the president on Tuesday night will deliver a high-profile address from the Oval Office. Speeches from the Oval Office are usually reserved for the most pressing and profound matters of a presidency. And this partial end of the Iraq war — the United States will still have 50,000 troops stationed there — is a significant event. It demonstrates that Obama has kept a serious campaign promise: to end this war.

But with the economy foundering — many of the recent stats are discouraging — most Americans are probably not yearning above all for a report on Iraq and likely will not be all that impressed with Obama’s promise-keeping on this front. The main issue remains jobs, especially as the congressional elections approach.

Summer is essentially done. It’s back-to-school and back-to-work time for many of us. But on Obama’s first days after his Martha Vineyard’s vacation, he’s devoting (at least in public) more time and energy to foreign policy matters than the flagging economy. Worried Democrats must be livid. (Most House Democrats are still campaigning in their districts and are not yet back in Washington to gripe about their president.)

Wars are the most significant stuff of a presidency. There’s not enough media attention devoted to the Afghanistan war. But politically there’s little or no payoff for an Iraq war address. Obama can’t brag, “Mission accomplished.” (In fact, on Monday, press secretary Robert Gibbs said Obama would not be using those words.) He can’t declare victory. He can only declare a murky end to a murky war. That’s not going to rally the Democrats’ base or win over independents. It was not mandatory for Obama to deliver such a high-profile speech. Vice President Joe Biden traveled to Baghdad to commemorate this milestone. The administration has conducted other events regarding the end of combat operations. It’s been duly noted.

David Frum at FrumForum:

Just guessing, but here’s why:

The president’s biggest political problem is the disillusionment of his liberal voters. Contra Fox News, they do not see a liberal president doing liberal things. They see a consensus president rescuing Wall Street. The job situation remains dismal, the administration is deporting illegal immigrants, and where are the gays in the military?

What Obama needs to do between now and November is pound home the message: I have kept faith with my voters on their big concerns, healthcare and the Iraq war. Now those voters must keep faith with me.

Ronald Reagan could count on a cadre of conservatives to defend his actions against any and all critics. A friend once teased Bill Rusher, then publisher of National Review: “Whenever Reagan does something awful, you defend it on one of two grounds: either that Reagan had no choice, or that the full wisdom of his action will be disclosed to lesser mortals in God’s good time.” According to legend, Rusher answered, “May I point out that the two positions are not necessarily incompatible?”

Nobody seems willing to do for Obama what Rusher did for Reagan. So Obama must do the job himself. Tonight’s speech is part of that job. Message: I ended George Bush’s war. Vote Democratic.

The trouble is: This message seems unlikely to work in the way Democrats need. Obama’s speech is much more likely to alienate marginal voters than to galvanize alienated liberals, and for this reason:

Obama’s liberal voters will not abide any whiff of triumphalism in the president’s speech. For them, Iraq was at best a disaster, at worst a colonialist war crime. (Elsewhere on the Politics Daily site, David Corn’s colleague Jill Lawrence specifies what she’d like to hear the president say: “Never again.”)

But most Americans want and expect triumphs. “Americans love a winner. Americans will not tolerate a loser.” So said George Patton on the eve of D-Day, and he was right. And if President Obama declines to declare himself a winner, guess what alternative remains? Exactly.

Democracy In America at The Economist:

8:20: All in all, a nice speech by Mr Obama, in my opinion. Hit most of the right notes.

8:19: Agreed, though “they are the steel in the ship of our state” was a little much.

8:19: Call me a shallow booster, but that part about troops coming home, from the predawn dark to the excerpt below, was great prose. Just beautiful. Very affecting.

8:18: “Who fought in a faraway place for people they never knew”—that’s some beautiful iambic hexameter right there.

8:18: This turned into a rather moving tribute to the troops.

8:17: The shift from the war-ending announcement to the nation-building task reminds me of the BP speech—from the disaster to a different energy future was a stretch too far.  A good speech makes one or two strong points, not lots.

8:17: Yep—there’s the money: a post 9/11 GI bill. He’s daring Republicans to challenge it.

8:17: Is that a subtle gauntlet—the reference to doing right by our veterans?

8:16: This is starting to feel a little platitudinous. Time to dangle Beau from the upstairs window.

8:15: By one estimate, America has spent about $750 billion on the Iraq war.

8:14: Blaming the deficits on the war? True up to a point, but …

8:14: Also very nicely done—not setting a timetable for Afghan withdrawal. That makes it his more than Iraq. Double-down.

8:13: “As we approach the tenth anniversary, there are those who are asking tough questions about our mission there.” And I’m not going to answer those questions. PUNT!

8:12: Can’t explain why but the Oval Office format doesn’t play to Mr Obama’s significant strengths as a communicator. Maybe those curtains…

8:12: Having said that, I enjoyed this comment from one of Kevin Drum’s readers: “The surge worked just like stitches work to close a wound after improperly handling a knife.”

8:11: Why not thank him for the surge? It was a courageous, albeit very late in coming, policy.

8:10: Very nicely done—the reach-out to GWB. He didn’t knuckle under and thank him for the surge (as well he shouldn’t), but it was a graceful acknowledgement.

8:09: “A belief that out of the ashes of war, a new beginning could be born in this cradle of civilization.” Don’t feed the neocons.

8:09: Odd no mention of Saddam. If the war achieved anything it was toppling a mass murdering dictator. But that would be giving too much credit to Bush.

8:08: This part (Iraqis are a proud people, only Iraqis can do this and that) has the feeling of a plea.

8:08: Nice wiggle room: when a representative government is in place, then they will have a strong partner in the United States (but until then…?)

8:07: Is that true: that Iraqi forces have “taken the fight to” al-Qaeda, and have weakened them?

8:07: Credible elections, yes, but how can the US get the warring politicos to form a credible government?

8:06: It’s quite a valedictory tone, considering there are 50,000 troops still there.

8:05: Praising the courage of the armed forces is understandable and even obligatory but also a wonderful way to dodge the question of the whether the war was worthwhile

8:03: “Ahem, these are the reasons I did not support this war.”

8:02: Have other presidents had so many family pictures behind them during Oval Office addresses? Nice touch.

8:01: On the question of whether Mr Obama will give Mr Bush credit: I think he should. But I also think Mr Obama’s Afghan strategy is the sincerest acknowledgment of the surge’s success.

8:00pm: And we begin.

Instapundit:

ABSOLUT VICTORY: STEPHEN GREEN IS Drunkblogging Obama’s Iraq Speech.

Bush got a mention, the troops got two mentions — but I haven’t hear thanks to either one. . . .

What the hell is this? Seriously. We were promised an update on Iraq. Instead we’re getting a defense of Obamanomics, which unlike the Surge (anyone?), has been a total failure.

Read the whole thing. And weep, or laugh, or something. Drink!

UPDATE: More from Prof. Jacobson.

And here’s the full text of Obama’s speech.

Allah Pundit:

8 p.m. ET across the dial. It’s billed as an Iraq speech, but that’s not really what it is. The “key part,” apparently, will be a renewed call to “take the fight directly to al Qaeda” by finishing the job in Afghanistan. (Wouldn’t taking the fight to AQ require operations in Pakistan, not Afghanistan?) It’s also being billed as a “mission unaccomplished” speech, as the White House is ever mindful after Bush of the pitfalls in celebrating too early. But that’s not really what this is either. Like it or not, by investing the end of combat ops with the grandeur of an Oval Office address, The One is necessarily signaling completion of the task. And why not? The public couldn’t be clearer as to how it feels about renewing combat operations if Iraqi security starts to fall apart. This is closure, for better or worse.

Because it is closure, and closure at a moment when things are ominously open-ended in Iraq, I admit to having no appetite today for the standard left/right recriminations about how much Bush screwed up or whether Obama should credit him for the surge. (I think he will acknowledge Bush tonight, for what it’s worth, mainly to signal that this is an occasion that transcends partisanship. But never underestimate the political instincts of the perpetual campaigner.) Instead, since we’re putting a bookend on history, I offer you this grim big-picture reminiscence by star NYT correspondent John Burns, who was on the ground over there until 2007. Today is a day that’s taken forever to arrive, he says, and yet it still seems to have arrived too soon.

Ann Althouse:

Obama on Iraq: Mission Accomplished.

Jennifer Rubin at Commentary:

But most of all, the bulk of the speech had nothing to do with either Iraq or Afghanistan — it was a pep talk for his domestic agenda. This cements the sense that he simply wants out of messy foreign commitments. He also repeated a number of domestic policy canards. This was among the worst, blaming our debt on wars rather than on domestic fiscal gluttony: “We have spent over a trillion dollars at war, often financed by borrowing from overseas. This, in turn, has short-changed investments in our own people, and contributed to record deficits. For too long, we have put off tough decisions on everything from our manufacturing base to our energy policy to education reform.”

He is arguing for more spending.

Obama is still candidate Obama, never tiring of reminding us that he kept his campaign pledge and ever eager to push aside foreign policy challenges so he can get on with the business of remaking America. All in all, it was what we were promised it would not be — self-serving, disingenuous, ungracious, and unreassuring.

UPDATE: COMMENTARY contributor Jonah Goldberg’s smart take is here.

UPDATE II: Charles Krauthammer’s reaction is here.

Bill Kristol at The Weekly Standard:
President Obama opposed the war in Iraq. He still thinks it was a mistake. It’s therefore unrealistic for supporters of the war to expect the president to give the speech John McCain would have given, or to expect President Obama to put the war in the context we would put it in. He simply doesn’t believe the war in Iraq was a necessary part of a broader effort to fight terror, to change the Middle East, etc. Given that (erroneous) view of his, I thought his speech was on the whole commendable, and even at times impressive.

UPDATE: Ross Douthat

George Packer at The New Yorker

Scott Johnson at Powerline

Jonah Goldberg at The Corner

Matt Welch at Reason

UPDATE #2: Bill Scher and Matt Lewis at Bloggingheads

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Open The Closet And Walk To The Outside

Marc Ambinder:

Ken Mehlman, President Bush’s campaign manager in 2004 and a former chairman of the Republican National Committee, has told family and associates that he is gay.
Mehlman arrived at this conclusion about his identity fairly recently, he said in an interview. He agreed to answer a reporter’s questions, he said, because, now in private life, he wants to become an advocate for gay marriage and anticipated that questions would arise about his participation in a late-September fundraiser for the American Foundation for Equal Rights (AFER), the group that supported the legal challenge to California’s ballot initiative against gay marriage, Proposition 8.
“It’s taken me 43 years to get comfortable with this part of my life,” said Mehlman, now an executive vice-president with the New York City-based private equity firm, KKR. “Everybody has their own path to travel, their own journey, and for me, over the past few months, I’ve told my family, friends, former colleagues, and current colleagues, and they’ve been wonderful and supportive. The process has been something that’s made me a happier and better person. It’s something I wish I had done years ago.”
Privately, in off-the-record conversations with this reporter over the years, Mehlman voiced support for civil unions and told of how, in private discussions with senior Republican officials, he beat back efforts to attack same-sex marriage. He insisted, too, that President Bush “was no homophobe.” He often wondered why gay voters never formed common cause with Republican opponents of Islamic jihad, which he called “the greatest anti-gay force in the world right now.”
Mehlman’s leadership positions in the GOP came at a time when the party was stepping up its anti-gay activities — such as the distribution in West Virginia in 2006 of literature linking homosexuality to atheism, or the less-than-subtle, coded language in the party’s platform (“Attempts to redefine marriage in a single state or city could have serious consequences throughout the country…”). Mehlman said at the time that he could not, as an individual Republican, go against the party consensus. He was aware that Karl Rove, President Bush’s chief strategic adviser, had been working with Republicans to make sure that anti-gay initiatives and referenda would appear on November ballots in 2004 and 2006 to help Republicans.
Mehlman acknowledges that if he had publicly declared his sexuality sooner, he might have played a role in keeping the party from pushing an anti-gay agenda.
“It’s a legitimate question and one I understand,” Mehlman said. “I can’t change the fact that I wasn’t in this place personally when I was in politics, and I genuinely regret that. It was very hard, personally.” He asks of those who doubt his sincerity: “If they can’t offer support, at least offer understanding.”
“What I do regret, and think a lot about, is that one of the things I talked a lot about in politics was how I tried to expand the party into neighborhoods where the message wasn’t always heard. I didn’t do this in the gay community at all.”
He said that he “really wished” he had come to terms with his sexual orientation earlier, “so I could have worked against [the Federal Marriage Amendment]” and “reached out to the gay community in the way I reached out to African Americans.”
Mehlman is aware that his attempts to justify his past silence will not be adequate for many people. He and his friends say that he is aware that he will no longer control the story about his identity — which will simultaneously expose old wounds, invite Schadenfruede, and legitimize anger among gay rights activists in both parties who did not hide their sexual orientations.

Michael Triplett at Mediaite:

Ambinder was apparently pushed to run the story two days early after Mike Rogers, whose track record on outing conservative politicians is very good, reported on Blogactive that Ambinder was preparing a story that would confirm that Mehlman was gay and the story was slated for Friday or early next week.

Within an hour of Rogers going public with his scoop that Mehlman was about to come out as gay, Ambinder posted his story.

It’s a rumor that has circulated around Washington, D.C., for years.  Mehlman–who was recently in the news for buying a condo in New York City’s very-gay Chelsea neighborhood–has previously denied he’s gay but now he tells Ambinder that he “arrived at this conclusion about his identity fairly recently” and “anticipated that questions would be asked about his participation in a late-September fundraiser for the American Foundation for Equal Rights (AFER), the group that supported the legal challenge to California’s ballot initiative against gay marriage, Proposition 8.”

[…]

In 2006, Mehlman’s sexual orientation led to an uncomfortable moment for CNN after they edited a transcript and a video that featured Bill Maher outing Mehlman on Larry King Live. That story was later told in the documentary Outrage, which featured Rogers and his work to “out” closeted  gay conservatives who work against the LGBT community.

Ambinder seems like a natural to break the Mehlman story.  In 2006, he wrote about the challenges that Mark Foley scandal created for gay Republicans, including the lavender mafia that surrounded Foley and reached into the Republican establishment. A well-connected openly gay reporter, Ambinder would have the connections inside the web of gay Republicans to convince Mehlman to give him an exclusive.

According to the story, Mehlman and Ambinder have been talking for a number of years about Mehlman coming out and his views on gay issues.

Honestly, I thought the guy came out years ago. Remember when Bill Maher talked about the rumors surrounding him on Larry King’s show — back in 2006? I guess you were the last to know, Ken.

He’s doing this now, it seems, because he wants to drum up publicity for the cause of gay marriage and figures that “Republican whom everyone thought was gay actually is gay” headlines will do the trick. Could be, although Ambinder’s careful to remind readers of the sort of social con initiatives that the GOP pushed during Mehlman’s RNC tenure. That won’t endear him to gay activists, and his newly public identity won’t endear him to social cons. Maybe he should have just worked for gay marriage like Ted Olson and kept his orientation private?

Joe My God:

Andy Towle is reporting that Mehlman has already agreed to chair a “major anti-Prop 8 fundraiser” for Americans For Equal Rights, Ted Olson and David Boies’ outfit. Gee thanks, shitbag. That’s like offering to help rebuild a house when YOU were the fucker that helped BURN IT DOWN.

Towleroad:

Just got off the phone with Chad Griffin, Board President of the American Foundation for Equal Rights, the organization challenging Proposition 8 in federal court, regarding former RNC Chair Ken Mehlman and reports that he is about to come out of the closet.

Griffin tells me that Ken Mehlman is chairing a major fundraiser in late September that has already raised over $1 million for the organization battling Prop 8. The fundraiser is co-chaired by prominent Republican donors Paul Singer and Peter Thiel and will be held at Singer’s home.

A large number of other Republicans are co-hosts of the fundraiser including Mary Cheney, Margaret Hoover, and Steve Schmidt. Dick Gephardt is also among the hosts.

Said Griffin to Towleroad:

“Mehlman has committeed his own resources and been an integral part of the team at the American Foundation for Equal Rights. Our goal is to get as many people who aren’t on the side of gay marriage on our side, and once they are here, to welcome them.”

Said AFER board member Dustin Lance Black:

“Ken represents an incredible coup for the American Foundation for Equal Rights. We believe that our mission of equal rights under the law is one that should resonate with every American. As a victorious former presidential campaign manager and head of the Republican Party, Ken has the proven experience and expertise to help us communicate with people across each of the 50 states.”

John Aravosis at AmericaBlog:

Good for Ken. I know a lot of people will want to criticize him for heading up the GOP as a closeted gay man. He says he only recently came to terms with being gay. I suspect he always knew he was gay, but recently came to terms with accepting it, and embracing it. And good for him. He’s now doing the right thing, helping support marriage equality. I’m not going to fault him for that. Coming out is a horrendously difficult and complicated thing. It’s not rational.

Now, does that mean I oppose efforts to out people who are hurting our community? Absolutely not. I was there with the rest of them calling Mehlamn out for being a closeted gay man running a homophobic political party. Our long-time readers will remember Mehlman Mondays on AMERICAblog. I long talked about Mehlman being the only closet-heterosexual I’d ever heard of – a man not willing to admit he’s straight.

But that doesn’t mean we don’t embrace him now. And not just for strategic reasons. Mehlman, from what Ambinder says, is doing the right thing. He’s now using his position in the GOP to help our community on our number one issue: marriage. For that, he deserves our thanks.

Now, let me say, the GOP was happily anti-gay under Mehlman, so I don’t buy his story that he helped temper their nastiness. They were still homophobic bigots, regardless of what Mehlman did or didn’t do, and he chose to remain as their head. For that, he gets no thanks. But is he making up for it today? You betcha. It’s a start, and a damn good one.

As for the Democratic party, I hope someone at the DNC is starting to sweat. We now have the former head of the Republican party who is to the left of Barack Obama on gay marriage. There’s a virtual groundswell of senior Republicans coming out for marriage equality. It can’t be going unnoticed in the gay community. And while it doesn’t mean 70% of the gay vote will now go Republican instead of Democrat, it does mean that growing numbers of gays and lesbians will starting thinking of the GOP as a legitimate alternative to the Democratic party.

And finally, how about that religious right? The Republicans lied to them about Mehlman for years. And Mehlam himself admits that he used his position as RNC chair to help stop the GOP gay-baiting. The religious right was totally pwned.

Ann Althouse:

Journey? Oh, I hear the dog-whistle. He’s calling the Oprah crowd. Family, friendssupportive… he wants Democrats, women, etc., to care about him. Don’t hate me because I’m/I’ve been a Republican. Love me, because I’m gay, and oh! how I’ve anguished in the company of Republicans.

UPDATE: Michael Calderone at Yahoo

Peter Wehner at Commentary

Gabriel Arana at Tapped

Maria Bustillos at The Awl

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Filed under LGBT, Political Figures

Another Primary Night: Hot State, Hot State, Cold State

In Arizona:

Eric Kleefeld at Talking Points Memo:

Sen. John McCain (R-AZ), the Republican Party’s nominee for president in 2008, has won his nomination for another term in the Senate by a landslide, against the right-wing challenge from former Rep. J.D. Hayworth.

With 11% of precincts reporting, McCain leads by 59%-30%, and has been projected as the winner by the Associated Press.

As we noted this morning, McCain was heavily favored to win going into today. To his credit, McCain recognized early on that there was a restive environment among the GOP base, shifted to the right, and refocused himself to not lose that crowd to the anti-illegal immigration champion Hayworth — and he also outspent Hayworth by a ratio of about 10-1.

Weasel Zippers:

McCain Crushes Hayworth in Arizona GOP Primary, Will Now Shape-Shift Back Into a RINO…

Allah Pundit:

I can’t believe, in this year of all years, we couldn’t find a better challenger for McCain than this guy. It’s 60/29 as I write this. What a travesty.

Wonkette:

You’ve still got John WALNUTS! McCain to laugh at for another six years, assuming his bullshit genes are strong enough to fend off death until then. And then he will return to Arizona to make some more hilarious commercials, looking for all the world like he has never once seen the Dr. Seuss desert all around him.

In Florida:

Alexander Burns at Politico:

Multimillionaire health care executive Rick Scott narrowly captured the GOP’s nomination for governor of Florida Tuesday night, shocking both Republican and Democratic insiders who believed the free-spending newcomer’s fortunes had taken a sharp turn for the worse in the final weeks of his campaign against state Attorney General Bill McCollum.

On a night that was supposed to favor political insiders from coast to coast, and even as another self-funding Floridian – real estate billionaire Jeff Greene – crashed and burned in the state’s Democratic Senate primary, Scott’s victory stood out as a triumph of scorched-earth campaign tactics and relentless outsider messaging.

Jim Geraghty at NRO:

Can this be right?

In the GOP primary in Florida, a foregone conclusion for Rubio, 787,122 total votes cast.

In the Democratic primary, an actual competitive race between Kendrick Meek and Jeff Greene, 489,384 total votes cast.

UPDATE: Similar disparity in the gubernatorial primaries, although my assumption is that you get more votes in more closely divided and harder-fought primaries:

Vote in GOP primary for governor:  806,123 total votes cast.

Vote in Democratic primary for governor: 469,230 total votes cast.

Were Republicans more interested in their gubernatorial primary than Democrats were in their senatorial primary?

Paul Mirengoff at Powerline:

On the day of the Florida primary comes word of a new PPP poll that shows Marco Rubio 8 percentage points ahead of Charlie Crist in a three-way race also involving Kendrick Meek, who expected to secure the Democratic nomination. Crist has been leading in most polls I’ve seen, including the previous one by PPP, which had him up by 6 points.

The 14 point swing is due, not surprisingly, to a change in the dynamic with both Democratic and Republican voters. Democrats seem to be “coming home” to Meek, a traditional liberal Dem. According to PPP, they are now breaking for Meek 39-38, whereas before they favored Crist 44-35.

Republicans also seem to be “coming home.” Rubio’s 54-23 lead with GOP voters in July has now increased to 69-20. Crist still has his core of Republican support, but the undecided Republicans are moving into Rubio’s camp, if the latest poll is correct.

Crist faces an obvious dilemma. The more he reaches out to Democrats, the less popular he becomes with Republicans. But his real problem seems to be that, even as he has reached out to Dems, these voters are swinging towards Meek. And since Meek is an African-American, he has a large built-in advantage with a substantial portion of Florida’s Demcratic electorate. In addition, if Meek becomes the actual nominee, instead of just the leading contender in a tough race, more Democrats may be inclined to come home to him.

Even so, Crist is a formidable candidate; one poll certainly doesn’t change that. This race is best viewed as a toss-up.

Holly Bailey at Yahoo News:

After weeks of looking as though he might lose the race, Rep. Kendrick Meek soundly defeated financier Jeff Greene in Florida’s Democratic Senate primary — a major victory, since Greene spent more than $26 million of his own cash in the race.

With more than half the vote in, Meek was beating Greene by double digits. Greene, who led the polls up until about a week ago, had campaigned as an outsider, but Florida voters ultimately soured on his candidacy after weeks of bad press over his celebrity-studded yacht parties and thin political resumé.

But now Meek now faces an even more difficult challenge: Can he keep Democrats from defecting to Charlie Crist’s campaign? All summer, polls have found Meek running a distant third behind Crist, who quit the GOP to run as an independent, and Republican Marco Rubio — in part, because Crist has been pulling significant Democratic support away from Meek.

But a new Public Policy Polling survey out this week found that Meek has now a 1-point advantage over Crist among likely Democratic voters in the race — a narrow edge that has taken away Crist’s overall lead in the general election. According to PPP, Rubio now leads the race at 40 percent, compared with 32 percent for Crist and 17 percent for Meek. The poll’s margin of error is 4 points

And in Alaska:

Doug Mataconis:

The biggest news coming out of Tuesday’s primary elections comes from Alaska where incumbent Senator Lisa Murkowski is fighting for her political life

Robert Stacy McCain at The American Spectator:

The New York Times, Roll Call and Anchorage Daily News reported this result cautiously — Murkowski was “imperiled” and “battling for her political life,” etc. — but with Miller at nearly 52% of the vote, it appears evident that the challenger has won an upset.

Shortly before 4 a.m., Miller campaign spokesman Randy DeSoto told me by phone he was “cautiously optimistic,” and a few minutes later, campaign scheduler Harmony Shields said that the result would, at least officially, be “inconclusive” pending completion of the vote-count later today. However, other sources close to the campaign said privately they were confident of victory.

The come-from-behind triumph of Miller — whom I profiled for the American Spectator in early July — would be the second time that Sarah Palin had dealt a defeat to the Murkowskis. She upset the senator’s father, Frank, to win the governorship in 2006, and her endorsement was a key factor in helping Miller, a veteran of the 1991 Gulf War, mount a strong surge in the final two months of the primary campaign.

David Weigel:

OK — you’re wondering how Joe Miller, a lawyer who has never won an election, is currently leading Sen. Lisa Murkowski (R-Alaska) in a primary she seemed to have in the bag. Didn’t Murkowksi have all of the money? Weren’t Miller’s rallies pretty listless affairs?

Yes, but since at best Murkowski is going to win closer than any polls suggested, here are two things that affected the race. The first: The Tea Party Express threw around half a million dollars into the campaign on Miller’s behalf. That’s huge money in Alaska. Second: Measure 2, a parental consent ballot initiative, brought out pro-life voters who have never trusted Murkowski. Sarah Palin’s early endorsement also handed Miller credibility and media attention which, in a GOP primary, was more important than Palin’s increasing unpopularity in the state.

Summing it up:

Marc Ambinder:

Says John Dickerson: “The national lesson from the primaries today is clear: a;sdlfk jp9r;tyh##”

Hewing to my “good analysis is victory agnostic” nostrum, here’s what I’m taking away from a night of surprises and triumphs.

One: J.D. Hayworth was a wannabe insurgent who was toppled by his own arrogance. He was too smooth for a year where anyone who sounds like a politician…really, anyone who sounds fairly coherent and talks in crisp, reasonable-sounding, consultant-approved sound bites…is suspect, particularly for Republicans.

Two:  Show me a low turnout primary election, and I will raise you polling that just does not capture likely voter enthusiasm swings. But turnout in Alaska was high — higher, in fact, than expected. I’ve always wondered how you poll Alaska anyway, and the tightness of the race suggests that models up there aren’t working very well. BTW: it’s likely that a parental notification ballot initiative drove conservatives to the polls in Alaska, boosting Joe Miller, a Gulf War vet and ally of Sarah Palin’s, to striking distance and possible victory over incumbent Lisa Murkowski.

Three: It is fairly clear that the anti-establishment / anti-Washington / pro-radical revolution plankton are feeding more off Republicans than off Democrats. As the year has unfolded, it has become easier and easier for formerly fringe candidates to find funding sources, get key “outsider” endorsements and shock complacent frontrunners.  When it comes to the Tea Party factor, remember: about issues it ain’t. Bill McCollum was one of the attorneys general who filed a lawsuit against Obama’s health care reform bill. He is as conservative as a Blackberry at an Apple convention.  But he has ties to the state’s now-discredited Republican establishment (think of the indictment of the former party chairman) and his avuncular, amiable, comfortable-as-a-leather shoe style just doesn’t fit with the times.  Rick Scott didn’t need the money, but the Tea Party Express helped him build a volunteer base. In Alaska, the same group ponied up $500,000 to help Miller (probably) defeat an incumbent U.S. senator.

Four: For the four statewide races in Florida, 5 Republicans turned out for every four Democrats.  500,000 Florida Republicans chose as their gubernatorial nominee someone who the Democratic Party can easily label a “corrupt health care CEO” and not get sued for libel. Note: Sink outpolled Scott by 75,000. Obviously, a large chunk of the 500,000 Republicans who voted for Bill McCollum (last seen on Fox News, 24 hours a day) will enthusiastically support their new nominee, but Sink begins the general election, even in a Republican year, with a lead. Health care will be a major part of her race because Scott claims credit for running ads that substantially slowed down the progress of the Congressional debate and because of his own record.  Scott begins the general election with a pot of gold. Democrats will need to spend money to pick up a seat that could well determine how Florida is redistricted next year, which means that the White House and Congressional Democrats have a stake in what happens.

More Republicans voted for Marco Rubio than Democrats did for all four Senate candidates combined, an ominous and unsurprising sign that enough Democrats are probably going to align themselves with Charlie Crist so that Crist wins or Rubio walks away with the seat.

Five:  in Alaska, Sarah Palin’s endorsement does seem to matter. It’s not like no one predicted that Joe Miller could be the next senator; former Gov. Tony Knowles told me a month ago that Murkowski was not taking Miller seriously and that he could easily organize a campaign to beat her in the primary.  Absentees won’t be fully counted for a while, but Miller’s victory can be reasonably inferred from the outstanding ballots.

UPDATE: Murkowski concedes. Robert Stacy McCain

Michelle Malkin

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Filed under Political Figures, Politics

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

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Filed under Gay Marriage

“You Know, If I’d Wanted Dick Cheney As President I Would Have Just Voted For Him.”

Ellen Nakashima at WaPo:

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau’s authority. “It’ll be faster and easier to get the data,” said Baker, who practices national security and surveillance law. “And for some Internet providers, it’ll mean giving a lot more information to the FBI in response to an NSL.”

Julian Sanchez at The American Prospect:

At issue is the scope of the Federal Bureau of Investigation’s power to obtain information from “electronic communications service providers” using National Security Letters (NLS), which compel private companies to allow government access to communication records without a court order. The administration wants to add four words — “electronic communication transactional records” — to Section 2709 of the Electronic Communications Privacy Act, which spells out the types of communications data that can be obtained with an NSL. Yet those four little words would make a huge difference, potentially allowing investigators to draw detailed road maps of the online activity of citizens not even suspected of any connection to terrorism.

In their original form, NSLs were extremely narrow tools designed to allow federal investigators to obtain very basic telephone records (name, address, length of service, calls placed and received) that could be linked by “specific and articulable facts” to persons suspected of being terrorists or foreign spies. In 1993, Congress amended the statute to clarify that NSLs could be issued to electronic information service providers as well as traditional phone companies. But wary of the potential for misuse of what the House Judiciary Committee called this “extraordinary device” in a world of rapidly changing technology, Congress placed tight limits on the types of records that could be obtained, making clear that “new applications” of NSLs would be “disfavored.”

The administration is presenting this change as a mere clarification meant to resolve legal ambiguity — as though Congress had simply misplaced a semicolon. Yet the Bush-era Office of Legal Counsel already rejected that argument in a 2008 opinion, concluding that the FBI had for years misread the “straightforward” language of the statute. And clarity is certainly needed, as it is hard to know just what falls under “categories of information parallel to subscriber information and toll billing records.” The standard reference for lawyers in this sphere, David Kris’ National Security Investigations and Prosecutions, simply notes that the scope of NSLs as applied to online activity is unclear. Even the Justice Department seems uncertain. In a 2001 response to congressional inquiries about the effect of the newly enacted PATRIOT Act, DOJ told Congress that “reasonable minds may differ” as to where the line should be drawn between addressing information equivalent to toll billing records and “content” requiring a search warrant.

Congress would be wise to specify in greater detail just what are the online equivalents of “toll billing records.” But a blanket power to demand “transactional information” without a court order would plainly expose a vast range of far more detailed and sensitive information than those old toll records ever provided.

Consider that the definition of “electronic communications service providers” doesn’t just include ISPs and phone companies like Verizon or Comcast. It covers a huge range of online services, from search engines and Webmail hosts like Google, to social-networking and dating sites like Facebook and Match.com to news and activism sites like RedState and Daily Kos to online vendors like Amazon and Ebay, and possibly even cafes like Starbucks that provide WiFi access to customers. And “transactional records” potentially covers a far broader range of data than logs of e-mail addresses or websites visited, arguably extending to highly granular records of the data packets sent and received by individual users.

As the Electronic Frontier Foundation has argued, such broad authority would not only raise enormous privacy concerns but have profound implications for First Amendment speech and association interests. Consider, for instance, the implications of a request for logs revealing every visitor to a political site such as Indymedia. The constitutionally protected right to anonymous speech would be gutted for all but the most technically savvy users if chat-forum participants and blog authors could be identified at the discretion of the FBI, without the involvement of a judge.

Marc Ambinder:

Now, there’s a good faith case to be made that the FBI ought to have this authority. After all, the bad guys don’t use telephones to talk to each other any more. But the FBI has abused the NSL authority, essentially fabricating pretexts for sending NSLs to thousands of people. Since the NSL authority was expanded by the PATRIOT Act, three separate OIG investigations have found abuses that rise above the level of incidental misuse of power. The FBI has excuses: it’s the databases. It’s the urgency of terrorism investigations. It’s the lack of clarity in the language.

The urgency factor is a good excuse for the FBI to have the authority, but not to misuse it. NSLs are issued without prior approval from a judge. They’re now part of the standard anti-terrorism investigatory toolkit. They’re needed.

Democrats on the Judiciary and Intelligence committees are skeptical of the request to change the statute for precisely these reasons, and one senior aide noted that the language was met with some skepticism by Congressional staff who’ve grown wary of FBI excuses for overreach.  Then again, it is always hard for members of Congress to say no to something that the FBI claims is vital for its counterterrorism efforts.

There is a compromise here: the FBI can subject its NSL issuances to post-facto review from judges, who can decide whether the FBI’s pretexts are sufficient. The FBI doesn’t need to get a judge’s permission to issue an NSL and the internet provider can’t wait until the judicial review kicks in. This way, the FBI can get what it needs and there’s a check on that power.

But this compromise won’t work. The FBI issues tens of thousands of NSL requests per year, most of them for telephone records and other information, like credit reports. There’s no way a judge can individually approve, even in retrospect, tens of thousands of requests without significantly adding to already overflowing caseloads.

So, in the end, as with almost every issue about national security information, the question is one of trust. Can the American people, through Congress, trust the FBI to use this authority properly?  Maybe the administration and the FBI should answer this question: given past abuses, what steps will you take to ensure that this authority isn’t abused?

Kelley Vlahos at The American Conservative:

It seems so perverse and creepy, considering that WaPo reported only last week in its “Top Security America” series that the federal government’s behemoth intelligence/security apparatus has way more data than it can possibly analyze effectively. It’s  disheartening that the administration admits it’s targeting those hold-out Internet service providers that have been heretofore unwilling to play ball with the feds. In other words, private companies that have, so far, resisted the government’s push for greater authority and control over the Net.

Senior administration officials said the proposal was prompted by a desire to overcome concerns and resistance from Internet and other companies that the existing statute did not allow them to provide such data without a court-approved order…

To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is “incredibly bold, given the amount of electronic data the government is already getting,” said Michelle Richardson, American Civil Liberties Union legislative counsel.

I guess it’s safe to say now that civil libertarians have been thoroughly hosed (in other words, hoodwinked, flimflammed, bamboozled, duped, chiseled and burned) by Barack “the constitutional law professor” Obama. The question remains, how far will he go?

James Joyner:

The 4th Amendment’s requirement that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seize” is really a nuisance, the Obama administration argues.

[…]

I understand any administration’s or agency’s desire to accumulate more power — after all, they’re decent folk who just want what’s best for the country.  But I don’t get how this passes judicial scrutiny.

While I’ve got a strong libertarian streak and am staunchly protective of our rights under the Constitution, I’m not an absolutist.   Even our most fundamental liberties, such as freedom of speech and assembly, have to be balanced against the rights of others and the need for public safety.

During the Bush administration, I defended the idea that the government ought to be able to conduct data mining operations on mass communications with persons of interest overseas.   My rationale was that this wasn’t a “search” in any meaningful sense because it was just computer algorithms sifting through impersonal information, that there would be no way to show probable cause ahead of time, the targets were overseas operatives, and that the purpose was intelligence gathering rather than prosecution.   So, the harm to individual liberty was small and mostly theoretical while the potential harm to society from not gathering the information was substantial.

But this is something quite different:  Specific searches of activities carried on by specific American citizens domestically.   Further, it’s not like the records are going anywhere, making seeking out a magistrate and getting a proper warrant a minor burden.   So there’s no reason that a warrant can’t be obtained and no additional risk to society by going through the process required by the Constitution outside the ones intended by the Framers.

Matthew Yglesias:

Of course, checking out someone’s browser history could be very useful in a terrorism investigation. But if I had some kind of cause—probable cause, let’s say—to suspect someone of involvement in terrorism, I could just get a warrant. If I want to see whether my wife has a secret Match.com account, by contrast, I’m going to need some kind of authority to compel private companies to divulge this information without me needing to explain myself to a judge.

FBI personnel are, I’m sure, overwhelmingly decent and honorable people whose subjective understanding is that they want to use these enhanced powers for legitimate purposes. But who among us, when being honest, has never misused work resources a bit for personal purposes? Everyone slacks off on the job. Everyone has moments of prurient interest in the lives of other people. Taking the gloves off, surveillance-wise, is much more likely to lead to abusive behavior than to super-awesome counterterrorism operations.

Emptywheel at Firedoglake:

Make no mistake. This is one of the most important pieces of civil liberties news in a long time. The Obama Administration is asking Congress to sanction the collection of internet records without a warrant–the kind of shit they used to do without a warrant, until people expressed their opposition.

But then Democrats took over and now they want legal sanction and now–Voila, a request that presumably provides cover.

Kevin Drum:

I forget. How many NSLs do the FBI and other federal agencies already send out every year? 30,000? 50,000? What’s it up to now? Whatever it is, I guess it’s still not enough. That business of getting approval from a judge is just so annoying, after all.

You know, if I’d wanted Dick Cheney as president I would have just voted for him.

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