A Blue View

Watch Ted Olson Calmly Demolish The Right's Fig Leave Arguments Opposing Marriage Equality

After watching this, it is clear there is no rational basis for opposing marriage equality. In fact, conseravative attorney Olson makes a great argument at the end as to why this should be a conservative, not just liberal, crusade. (Read the transcript.)

Elena Kagan: The Borshct Belt Comic

Jonathan Capehart:

Without question, Supreme Court nominee Elena Kagan’s “Christmas” retort to Sen. Lindsay Graham (R-S.C.) will be the most memorable moment of her confirmation hearings. Graham asked, “Christmas Day bomber. Where were you at on Christmas Day?” Kagan, whose day job is solicitor general of the United States, seemed confused by his query and started answering him seriously. But Graham cut her off and said, “No. I just asked where you were at on Christmas.”

Kagan’s response -- "Like all Jews, I was probably at a Chinese restaurant" -- was brilliant in its humor, timing and the self-effacing manner in which it was delivered. Despite the laughter in the chamber, it was one of those “only in New York” references that might go over the heads of a few folks. Even Sen. Patrick Leahy (D-Vt.) admitted that Sen. Chuck Schumer (D-N.Y.) explained it to him before the hearing. Then Schumer kindly pointed out that Chinese restaurants are the only places that are open on Christmas Day, which is vital in a city where making reservations IS making dinner. For those of you out there who are in need of a similar cultural life raft, take a look at this instant classic video from Saturday Night Live.

Check out Kagan's other funny moments here.

Sex Lives of Supreme Court Justices

Michael Kinsley nails it:

Now that the sex lives of Supreme Court justices have become grist for commentators, we are finally free to discuss a question formerly only whispered about in the shadows: Why does Justice Antonin Scalia, by common consent the leading intellectual force on the Court, have nine children? Is this normal? Or should I say "normal," as some people choose to define it? Can he represent the views of ordinary Americans when he practices such a minority lifestyle? After all, having nine children is far more unusual in this country than, say, being a lesbian.

Let me be clear: the issue is not the fact that Scalia has chosen to have nine children. That is his personal business. The question is whether he is an extremist advocate of the so-called "Nine Children Agenda." Can he deal open-mindedly with children’s issues when he has so many himself? Can he persuade his children to recuse themselves when appropriate (or, in the vernacular, "Just shut up, will you? I’m trying to write an opinion here.  Sweetheart, could you please come and take him…stop climbing up my leg…watch it with that glass of water, buddy…no, that’s some condemned prisoner’s brief that daddy has to reject, so don’t …would somebody please take this kid…LOOK OUT for the… Jesus H. Christ, how am I supposed to get any work done"?).

Speculation is already rampant about why Scalia chose nine children over a more conventional lifestyle. Is he a sex maniac? That suspicion naturally arises. But perhaps once he started, he just never got around to stopping. Or maybe he just likes children. In recent days, Scalia’s friends have rushed to his defense, going out of their way to portray him as a model of sexual restraint.  "Every Friday a bunch of us used to go down to this bar to pick up women," one of his college roommates recalls. "We’d always ask Nino if he wanted to join us, but he always said he was too busy studying. Frankly, we thought he was gay."

Kagan Nomination Cartoons

The Most Important Quality For Obama's SCOTUS Nominee: Pulling In Kennedy

It's not where they fall on the ideological spectrum, it's their ability to get five votes. Chuck Schumer in the NY Times:

Senator Charles E. Schumer of New York, a Democratic leader who shepherded Justice Sotomayor through confirmation, said the focus should be finding a nominee who could influence Justice Anthony M. Kennedy, the swing vote on the closely divided nine-member court, rather than selecting a firebrand who writes powerful dissents.

“One of the most important qualities for the new justice is the ability to win over Justice Kennedy,” Mr. Schumer said. In other words, he added, “somebody who’s going to be one of the five and not one of the four.”

Why The Health Reform Law Is Here To Stay. Hear That Supreme Court?

Jeffrey Tobin:

I will leave the waxing eloquent on this historic day to my colleagues. I have three brief observations about the legal implications of the passage of health-care reform.

1. Abortion. The negotiations between Congressman Bart Stupak and the White House over the executive order on abortion funding may rank among the most consequential inconsequential disputes in American history. It was important because it now seems likely that health care reform would have failed if Stupak and his allies had not voted for it. But the executive order itself is nearly meaningless as a legal and practical matter. Federal funding of abortion has been illegal under the Hyde Amendment for almost two generations. The health-care reform bill did nothing to disturb that status quo. Anti-abortion forces mobilized against the legislation but without ever establishing that it would affect abortion at all. In short, nothing happened on abortion—and, apparently, that made all the difference.

2. Constitutionality. Various states have threatened to go to court to assert that Congress acted outside its authority in passing the health-care reform bill. Even with a conservative Supreme Court, these challenges seem bound to fail. For decades, the Court has upheld the extensive federal role in health care through such programs as Medicare and Medicaid. This new law is a change in degree, not in kind, and courts will likely stay out of the way.

However, it’s also worth noting that the courts, including the Supreme Court, will be interpreting the new health-care-reform law for many years to come. Any new law raises a multitude of questions for interpretation, and this one will raise many. What’s covered? Who pays? How does the transition to the new system work? ...

3. The future. Liberals in particular have noted with frustration that the Senate has become a tremendous roadblock to legislative progress. Now that filibusters are routine on almost all Senate business, it takes sixty votes to do almost anything. That sclerotic process may look pretty good to liberals now, because it means that this piece of legislation is almost repeal-proof. It would take sixty-plus Republicans and a Republican President to get the job done (or undone). That’s not happening soon (or maybe ever). This law may turn out to be popular or detested, prescient or misguided—but it is here to stay.

In Logical Extension Of Supreme's Big Wallet Decision, Md Corporation Runs For Congress

Wash Post:

Murray Hill might be the perfect candidate for this political moment: young, bold, media-savvy, a Washington outsider eager to reshape the way things are done in the nation's capital. And if these are cynical times, well, then, it's safe to say Murray Hill is by far the most cynical.

That's because this little upstart is, in fact, a start-up. Murray Hill is actually Murray Hill Inc., a small, five-year-old Silver Spring public relations company that is seeking office to prove a point (and perhaps get a little attention).

After the Supreme Court declared that corporations have the same rights as individuals when it comes to funding political campaigns, the self-described progressive firm took what it considers the next logical step: declaring for office.

"Until now, corporate interests had to rely on campaign contributions and influence-peddling to achieve their goals in Washington," the candidate, who was unavailable for an interview, said in a statement. "But thanks to an enlightened Supreme Court, now we can eliminate the middle-man and run for office ourselves."

William Klein, a "hired gun" who has been enlisted as Murray Hill's campaign manager, said the firm appears to be the first "corporate person" to run for office and is promising a spirited campaign that "puts people second, or even third."

The corporate candidate already has its own Web site, a Facebook page with 2,600 fans and an online ad on YouTube that has drawn more than 172,000 hits.

The ad makes a particularly passionate case for why it's necessary to have more direct corporate representation in Congress.

In a soothing voice, a narrator bemoans that "as much as corporate interests gave to politicians, we could never be absolutely sure they would do our bidding." The ad includes images of gleaming office towers and disgraced lobbyist Jack Abramoff and promises Murray Hill will bring "enlightened self-interest and corporate accounting" to Congress.

It concludes with a rousing call to action: "Vote for Murray Hill Incorporated for Congress -- for the best democracy money can buy."

The firm, whose clients include labor unions and environmentalists, is seeking to enter the Republican primary for the 8th District seat held by Rep. Chris Van Hollen (D).

The firm "wanted to run as a Republican because we feel the Republican Party is more receptive to our basic message that corporations are people, too," Klein said, adding that his client has no particular beef with Van Hollen.

Van Hollen welcomes the competition. "The majority on the Court has made a mockery of our campaign finance laws, and Murray Hill is just mocking the mockers," said Doug Thornell, a senior adviser to Van Hollen ...

Murray Hill does face a couple of tiny problems in its effort to get elected to Congress.

The Supremes' Interpretation Of The Constitution (cartoon)

 

Poll: 80% Of Americans Oppose The Supreme's Big Wallet Decision

Wash Post:

Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll.

Eight in 10 poll respondents say they oppose the high court's Jan. 21 decision to allow unfettered corporate political spending, with 65 percent "strongly" opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits.

The poll reveals relatively little difference of opinion on the issue among Democrats (85 percent opposed to the ruling), Republicans (76 percent) and independents (81 percent).

The results suggest a strong reservoir of bipartisan support on the issue for President Obama and congressional Democrats, who are in the midst of crafting legislation aimed at limiting the impact of the high court's decision. Likely proposals include banning participation in U.S. elections by government contractors, bank bailout recipients or companies with more than 20 percent foreign ownership.

But Senate Minority Leader Mitch McConnell (Ky.) and other Republican lawmakers have praised the ruling as a victory for free speech and have signaled their intent to oppose any legislation intended to blunt the impact of the court's decision ...

Democrats have seized on the ruling as an example of judicial overreach and vowed to enact new limits on political spending by corporations, which have traditionally favored Republicans in their contribution patterns. Obama said in his State of the Union address that the ruling will "open the floodgates for special interests, including foreign corporations, to spend without limit in our elections."

Republicans and business groups have rallied around the ruling, arguing that the decision merely levels the playing field with free-spending unions and other liberal interest groups. The new poll, however, suggests there may be political risks for the GOP in opposing limits that appear to be favored by the party's base.

Nearly three-quarters of self-identified conservative Republicans say they oppose the Supreme Court ruling, with most of them strongly opposed. Some two-thirds of conservative Republicans favor congressional efforts to limit corporate and union spending, though with less enthusiasm than liberal Democrats.

Indeed, the poll shows remarkably strong agreement about the ruling across all demographic groups, and big majorities of those with household incomes above and below $50,000 alike oppose the decision. Age, race and education levels also appeared to have little relative bearing on the answers.

Perry vs. Schwarzenegger Judge Outed

SF Chronicle: 

The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.

Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist, appointed to the bench by President George H.W. Bush in 1989, has never taken pains to disguise - or advertise - his orientation.

They also don't believe it will influence how he rules on the case he's now hearing - whether Proposition 8, the 2008 ballot measure approved by state voters to ban same-sex marriage, unconstitutionally discriminates against gays and lesbians.

"There is nothing about Walker as a judge to indicate that his sexual orientation, other than being an interesting factor, will in any way bias his view," said Kate Kendell, head of the National Center for Lesbian Rights, which is supporting the lawsuit to overturn Prop. 8.

As evidence, she cites the judge's conservative - albeit libertarian - reputation, and says, "There wasn't anyone who thought (overturning Prop. 8) was a cakewalk given his sexual orientation."

State Sen. Mark Leno, D-San Francisco, who has sponsored two bills to authorize same-sex marriage that were vetoed by Gov. Arnold Schwarzenegger, said that as far as he's concerned, Walker's background is a nonissue. "It seems curious to me," he said, that when the state Supreme Court heard a challenge to Prop. 8, the justices' sexual orientation "was never discussed."

Leno added, "I have great respect for Judge Walker, professionally and personally."

Walker has declined to talk about anything involving the Prop. 8 case outside court, and he wouldn't comment to us when we asked about his orientation and whether it was relevant to the lawsuit.

Many San Francisco gays still hold Walker in contempt for a case he took when he was a private attorney, when he represented the U.S. Olympic Committee in a successful bid to keep San Francisco's Gay Olympics from infringing on its name.

"Life is full of irony," the judge replied when we reminded him about that episode.

And did he have any concerns about being characterized as gay?

"No comment."

Since The Supreme Court Wouldn't Let You It, MarriageTrial.com Is The Next Best Thing

NY Times:

Considering all the media hoopla surrounding the trial on Proposition 8, California’s voter-approved ban on same-sex marriage, it was bound to get the Hollywood treatment. But this fast?

Frustrated by a Supreme Court decision barring broadcast of the trial, two Los Angeles film types are translating the courtroom testimony into elaborate YouTube re-enactments, complete with professional actors, realistic sets and a budget that might buy you lunch.

“We told the actors: ‘Don’t embellish this. These are real people. This is real testimony. We have to be true to that,’ ” said John Ainsworth, an actor who, along with a filmmaker, John Ireland, is producing the videos and an extensive media campaign of their own.

Once completed, 60 hours of video will reconstruct 12 days of testimony taken verbatim from court transcripts. Each day’s testimony will be uploaded in hourlong chapters to YouTube and marriagetrial.com, a Web site Mr. Ireland and Mr. Ainsworth created for the project. They said Tuesday that they hoped to have all the video online within two weeks.

Though many in the cast have real acting chops — one plays the president on the Fox show “24” and another, Tess Harper, was nominated for an Academy Award — all are volunteering their time. Shooting takes place in 16-hour stretches on weekends in a mock courtroom at the University of Southern California’s law school.

Mr. Ireland, 39, and Mr. Ainsworth, 35, are gay and legally married, both having wed their respective husbands in the months before voters passed Proposition 8.

“This court case is of great personal interest to us,” Mr. Ainsworth said. “I wanted to see what was going on in that courtroom.”

The two decided to make the re-enactment after the Supreme Court blocked Judge Vaughn R. Walker of Federal District Court here from broadcasting the trial proceedings. Judge Walker, who is expected to hear final arguments in March, has not set a date for issuing his decision.

Those looking for a few minutes of typically goofball YouTube entertainment will probably want to go elsewhere. But judging from reactions posted online after the first two installments, those searching for an accurate accounting of the proceedings of a constitutional case all but guaranteed to reach the Supreme Court will not be disappointed.

“Fabulous,” commented CBlargh. “It’s the next best thing to seeing the actual trial.”

Wrote steveplittle: “I thought the guy playing the judge was very good at representing how boring and dry most legal proceedings are. This is not ‘Law and Order’ (thank goodness).”

Perry vs. Schwarzenegger Implications: "It has been an amazing two and a half weeks"

Autumn Sandeen:

It has been an amazing two and a half weeks.  This trial has been a truly historic moment for our community.  It is the first time a federal court has heard, first hand, from real live witnesses, about the harm that the denial of marriage equality causes lesbians, gay men and their families every day.  It's also the first time a federal court has heard the arguments in favor of marriage equality presented live in court by an array of internationally renowned scholars who are truly experts in their respective fields.

What stands out the most after having seen all the witnesses on both sides is how overwhelmingly one-sided the evidence in this case turned out to be.  The plaintiffs, represented by some  of the most skilled attorneys in the country, laid out a well-crafted, meticulous case, backed by the testimony of half a dozen of the most respected historians, psychologists, economists, and political scientists who study marriage, sexual orientation, and child development.  Using the Prop 8 proponents' own outrageous and inflammatory words, ads, and emails, the plaintiffs powerfully demonstrated that Prop 8 was a direct product of hostility, fear-mongering, and demonization of lesbians and gay men.  And through the deeply moving testimony of the plaintiffs and other members of our community, they proved beyond question that denying same-sex couples the right to marry causes great harm to LGBT people and their children.  

Stacked up against this mountain of facts, scholarship, and science, the Prop 8 proponents - though represented by fine attorneys - were not able to come forward with a case of their own.  Before trial, they dropped nearly every witness they had planned to present and relied entirely on two poorly qualified, ill-prepared expert witnesses, neither of whom was able to establish that banning same-sex couples from getting married has any rational or legitimate purpose relating to procreation, child rearing, tradition, or any of the other justifications that have been offered in the past in support of anti-gay discrimination.  In fact, nearly all of the defendants' experts agreed with the plaintiffs that marriage equality would benefit same-sex couples and their families in many real, tangible ways.

It should not have come as a surprise that the defense's case turned out to be so weak.  As our executive director Kate Kendell is fond of saying, the arguments against marriage equality have always been "all hat and no cattle."  This trial showed more powerfully than ever that there truly is no substance to the arguments of those who would deny equality to our families.  It has been extremely gratifying to see those arguments aired out in public, before a smart, independent-minded judge, in a way that's never been done before.  It is a shame that the public was unable to see the trial in video, but the transcripts, available at http://www.equalrightsfoundation.org/our-work/hearing-transcripts/, are fascinating reading for anyone interested in learning more about this important chapter in our civil rights struggle.

Perry vs. Schwarzenegger Update: What Is Marriage & The End Of Testimony

Jesse McKinley:

Jan 27 | last day of testimony:

As testimony in the trial over the fate of Proposition 8 drew to a close, the central question of “what is marriage” dominated the heated — and occasional unintentionally humorous — debate.

Early Wednesday, the final defense witness, David Blankenhorn, the founder and president of the Institute for American Values, again locked horns with David Boies, a leading lawyer for the plaintiffs seeking to overturn the ban.

At one juncture, Mr. Boies asked Mr. Blankenhorn whether some of the experts he had earlier cited as saying same-sex marriage would damage traditional marriages had voiced their opinion with absolute certainty or merely suggested it was “likely.”

Mr. Blankenhorn seemed annoyed. “The issue is always likely, Mr. Boies,” he said. “There is no certainty.”

Later, Mr. Boies questioned Mr. Blankenhorn on his belief in three so-called rules of marriages: that they must be made up of opposites (like man and woman), that marriages are made up of two people and that marriages involve sex. After a discussion of some anthropological cases of homosexual marriages in Africa and other cultures, Mr. Boies pushed Mr. Blankenhorn on whether he believed all marriages must fit that template.

Mr. Blankenhorn said he would speak carefully, saying “to be on the safe side,” that there were “no or almost no exceptions.”

Mr. Boies pressed for a more definitive answer. Mr. Blankenhorn didn’t respond.

After Mr. Boies asked again, a few in the packed courtroom began to giggle, and Mr. Boies smiled. “It’s not a laughing matter to me, Mr. Boies,” said Mr. Blankenhorn, seeming upset.

Judge Vaughn R. Walker, who is overseeing the trial, stepped in. “I don’t think he’s laughing at you,” the judge said. “He’s amused at the back and forth. As many of us obviously are.”

Mr. Blankenhorn later drew a surprised response from spectators, many of whom seemed to be siding with the plaintiffs, when he said that historical instances of polygamy in places like China and India did not technically violate the second rule — that marriage is between two people.

“Each marriage is separate,” Mr. Blankenhorn said. “One man and one woman.”

Both sides anticipate Wednesday to be the last day of a trial that began two-and-a-half weeks ago and initially featured reams of testimony from the plaintiff’s side, a pair of gay couples who say that Proposition 8, which California voters passed in 2008 and eliminated same-sex marriage, violates their constitutional right to due process and equal protection.

Judge Walker has said that the trial would take a break after testimony was heard to allow him time to digest the information; closing arguments will be set later.

The defense case, which began on Monday, has been slimmer but often more dramatic, with Mr. Boies, a celebrated courtroom litigator, conducting bruising cross-examinations, which sometimes lapsed into innuendo-laden territory.

At the start of a discussion of the third rule of marriage – that sex is always involved – Mr. Boies said that he didn’t want his questions to “want to fall into the trap of making sex boring.” Mr. Blankenhorn shot back. “Maybe together we can do that,” he said, prompting loud and embarrassed laughter in the courtroom.

Update | 3:47 p.m.

Moments after the gavel sounded in Judge Vaughn Walker’s courtroom just after noon on Wednesday, bringing witness testimony to an end in the Proposition 8 trial, lawyers from both sides (and there were plenty), cordially shook hands with one another. At one point, one junior partner asked another what he planned to do next?

“Rest,” was the answer.

Indeed, whatever one’s opinion of gay marriage, what is certain is that the two-and-a-half weeks of legal punch-counter punch was by turns riveting, dense, and often just plain exhausting. (Sleepy, and even closed eyes, were not uncommon among spectators after lunch).

Much of that goes back to methodical legal strategy: Lawyers for the plaintiffs wanted to build an evidence-heavy case not only for this court level, but for its expected journey to the Supreme Court. The defense’s approach, meanwhile, was also step-by-step (if noticeably more brief than the plaintiffs), as they walked their witnesses through testimony that was being simultaneously projected as a Power Point presentation on screens in the courtroom.

Add to that the high stakes—the right of a discriminated minority to marry, as the plaintiffs see it, or the rights of the states to define marriage, the defense’s position—and its not surprising that both sides were in need of a nap.

What helped fight fatigue, however, was the innate drama offered by cross examinations on both sides, including the type of questions that might make people uncomfortable in other surroundings.

On Jan. 11 (Day One), for example, Brian Raum, a defense attorney, asked Paul T. Katami, a plaintiff, if it was his opinion that “there’s nothing wrong” with same-sex marriages or relationships. Mr. Katami, who seemed to be fighting hard to control his emotions, said he said he found nothing wrong with them, even as Jeffrey J. Zarrillo, his partner and a co-plaintiff, sat silently in the courtroom.

Wednesday (Day 12) was no less gripping at times, such as when David Boies, who lead the plaintiff’s often grueling crosses, continually pushed defense witness David Blankenhorn, the founder and president of the Institute for American Values, to answer questions unequivocally. Mr. Blankenhorn seemed to chafe at the methods of Mr. Boies, saying he was trying to put words into his mouth and accusing him of setting up “Gotcha” moments.

At one point, Mr. Boies asked for “yes or no” answer regarding polygamy.

“I would give a lot if I could have 15 seconds to answer the question,” said Mr. Blankenhorn, seemingly exasperated.

“Go,” said Mr. Boies, as Judge Walker— presided with a sense of humor and an occasional annoyance at the sometimes slow pace-of-play—crossed his arms with a frown.

After his answer, Mr. Blankenhorn said to Mr. Boies: “How’d I do?”

“You did OK,” said Mr. Boies. And then continued to press his attack.

Considering the tension of moments like that, it was also not completely surprising that people periodically cracked up in the courtroom, sometimes snickering at exchanges between witnesses and questioners. On Wednesday, when Mr. Boies said he’d turn his questioning to “sex,” in reference to marriage, Mr. Blankenhorn chimed in: “That’s a good subject.” Awkward giggles were heard.

Still, after testimony concluded on Wednesday, Judge Walker seemed genuinely impressed, calling the case “fascinating,” and praising both the “old hands in the courtroom” and the younger lawyers who filled other seats at the table. But even Judge Walker, who likely won’t hear final arguments until at least March, seemed to need a little break from the action.

“I’d like to take some time,” he said, “to go over all the material.”

Anna Bloom:

Jan 28 | Press conference

Soon after the defense team in Perry v. Schwarzenegger rested its case at noon on Wednesday, lawyers on both sides held back-to-back news conferences on the first floor of the federal courthouse in San Francisco. After two-and-a-half weeks of often contentious testimony and questioning, both sides declared they had presented strong cases on whether Proposition 8, the voter-approved ban on same-sex marriage is constitutional.

Perry v. Schwarzenegger 01/27/10 from Anna Bloom on Vimeo.

Justice Alito's Reaction To Obama Was Appalling -- But Not For The Reason You Probably Think

It wasn't exactly a "You lie" moment but it is nearly unheard of for the "nonpolitical" Supreme Court judges to react to something a President says in a State of the Union speech. Watch Alito clearly mouth "that's not true" when Obama says "the decision will open the floodgates for special interests." More important than it being another indication of the coarsening of American discourse, however, it offers an important and disturbing insight into Alito's ill considering thinking about this decision.

While I can certainly understand if Alito thinks the Law requires this decision, it is unbelievable that he does not think more money will flow into elections as a consequence.  Any first amendment decision is always a balancing act (my right to yell 'fire' in a theater vs. the audience's right not to suffer a dangerous stampede) and if Alito did not think this would open the floodgates for big wallets, there's no way he could have balanced the competing interests fairly.  In effect, by discounting the argument in favor of the restrictions, he tipped the scales in favor of overturning them.

So while mouthing his thoughts was a breach of decorum, the implications of the thoughts he was mouthing, are truly appalling.

Even More Cartoons On The Supreme's First Amendment, Big Wallet Decision

"Democrats Seek to Counter Court Ruling on Political Spending"

Wall St Journal:

Democrats are exploring ways to counter a Supreme Court ruling that threw out a century of limits on corporate political spending, hoping it will hand them a populist issue to stem a Republican tide rising on public anger.

President Barack Obama devoted his weekly address to the decision, calling it a victory for "special interests and their lobbyists." He cited "one of the great Republican presidents, Teddy Roosevelt," who "warned of the impact of unbridled, corporate spending" on elections.

Possible legislation includes requiring corporations to obtain shareholder approval before funding political advertisements and blocking companies from deducting election spending as a business expense on their taxes.

Another proposal, borrowed from existing rules for political candidates, is requiring "the CEO of the corporation to make a declaration at the end of an ad saying, 'I'm the CEO of X Corp. and I approved this ad,' " said Rep. Chris Van Hollen (D., Md.), who heads the House Democrats' campaign committee ...

Friday, White House Special Counsel Norman Eisen met to discuss options with aides to Mr. Van Hollen and Sen. Charles Schumer (D., N.Y.), as well as Justice Department staff and Fred Wertheimer, a longtime activist on campaign-finance issues, officials said.

Mr. Van Hollen said Democrats also are weighing an effort to bar companies that received federal bailouts and big government contractors from electioneering, similar to rules affecting federal employees.

Most Republicans hailed the court's decision as victory for free speech. Sen. Jeff Sessions (R., Ala.) said it would help individuals acting "collectively through a corporation."

Democrats hope to paint the Republican position as favoring "even more big money and corporate special interests influencing the outcome of elections," Mr. Van Hollen said. "That should be a wake-up call to many in the Tea Party movement," who, as in last week's Senate election in Massachusetts, have flocked to Republican candidates, he said ...

The Democrats' effort recalls the Lilly Ledbetter Fair Pay Act, the first bill signed into law by Mr. Obama when he took office a year ago. The union-backed law negated a 2007 Supreme Court decision that the president castigated during his campaign for making it harder for women to file discrimination claims.

Previously, Republicans sometimes have backed campaign-finance regulations. This year likely will be different. Even Sen. John McCain (R., Ariz.), who co-authored the bipartisan 2002 McCain-Feingold act cracking down on corporate electioneering, said Sunday on CBS's "Face the Nation" that little could be done. "The Supreme Court has spoken," he said, predicting "an inundation of special-interest money into political campaigns." ...

Some analysts expect a flood of corporate and union money to fuel an increase in political commercials, particularly negative attack ads. Others are skeptical.

Perry vs. Schwarzenegger Update: Marriage Discriminators Start Their Defense ... Badly

Gery Shih on Day 10:

[And after you read Shih, compare it to the Wall St Journal's coverage of the same day. The WSJ's lack of specifics regarding David Boies' "feisty cross-examination" gives a very different impression of what happened than Shih's more factual reporting. This is one of the clearest examples, since I began highlighting media bias, of how a media outlet's political views impacts their coverage.]

The trial began on Monday morning with lawyers seeking to overturn Proposition 8 submitting the remainder of their evidence, like an array of e-mail communications, videos from pro-Proposition 8 campaign activities and academic papers.

The video presentations included footage from “simulcasts” to church groups, in which pastors say that gay marriage would lead to the legalization of polygamy, marriage with children and bestiality.

“If Proposition 8 doesn’t pass we will see a domino effect and the social re-engineering of marriage will have a profound implication for every one of our lives,” said a man in the footage, in what appeared to be a live interview. He compared the potential failure of Prop 8 to the Sept. 11 World Trade Center attacks in New York, saying, “After 9/11 the world was a fundamentally different place.”

A woman added: “If sexual attraction was the basis for the definition of marriage then pedophiles would have to be allowed to marry 6-, 7-, 8-year olds. Then a man could marry a horse. Mothers and sons. Sisters and brothers.”

The purpose of entering these simulcasts as evidence is part of the plaintiff lawyers’ attempt to show that Proposition 8 violated the constitution because it was motivated by prejudice and resulted in discrimination against a politically vulnerable group.

When Christopher Dean Dusseault, a lawyer for the plaintiffs, tried to link the simulcasts with ProtectMarriage.com, the official campaign behind Proposition 8, Nicole Moss, a lawyer with the defense, acknowledged that the simulcasts were paid for by ProtectMarriage.com, but objected that they were relevant to the case.

The plaintiffs also submitted the e-mail communications of Ron Prentice, the executive director of ProtectMarriage.com. The e-mail messages apparently showed coordination between the church groups that produced the simulcasts and Mr. Prentice’s efforts to closely “control the message from the simulcast,” in Mr. Prentice’s words, when it seemed that they would appear on the “Dr. Phil Show.”

Update | 4:04 p.m. With the last of its evidence submitted, the legal team for the plaintiffs rested their case shortly after 11 a.m. on Monday, exactly two weeks after they called the first of their 17 witnesses.

David H. Thompson promptly took over and presented Kenneth Miller, a professor at Claremont McKenna as the first witness for the defense. David Boies, the lawyer for the plaintiffs, challenged Dr. Miller’s qualifications as an expert on gay and lesbian politics, but Judge Walker allowed Mr. Thompson to proceed.

The strategy of the defense was to show, with extensive detail, the political and financial backing that gays and lesbians in California have enjoyed in recent years. This could undermine the plaintiffs’ argument that Proposition 8 passed because gay men and lesbians are a politically oppressed group suffering from continuing discrimination.

“Forty-three million dollars were raised and spent by the opponents, which exceeded very large contributions by the Yes on 8 campaign,” Dr. Miller said. “There is no social issue that has ever involved this kind of money.”

He added: “This is exceptional.”

Dr. Miller also testified that gays and lesbians could count on a deep and varied contingent of political allies. He named the state and national Democratic parties, organized labor, newspapers, celebrities and some church groups as politically powerful institutions and individuals that favor same-sex marriage ...

Update | 8:54 p.m. After Mr. Thompson finished questioning Dr. Miller, the rest of Monday afternoon was taken up by Mr. Boies’s cross examination of Dr. Miller, which yielded some uncomfortable moments for the professor of government from Claremont McKenna College.

The defense, fending off Mr. Boies’s attempts to disqualify Dr. Miller earlier in the day, had characterized Dr. Miller as a scholar well versed across the broad politics of California initiatives. Upon the start of his cross examination, however, Mr. Boies persistently tried to uncover Dr. Miller’s unfamiliarity in the area of gay and lesbian political and legal history as he cast doubt on the professor’s qualifications as an expert witness for this trial.

Poll: 57% Think Corp Contributions Are Free Speech Yet 76% Want Limits Placed

Gallup:

Americans' broad views about corporate spending in elections generally accord with the Supreme Court's decision Thursday that abolished some decades-old restrictions on corporate political activity. Fifty-seven percent of Americans consider campaign donations to be a protected form of free speech, and 55% say corporate and union donations should be treated the same way under the law as donations from individuals are. At the same time, the majority think it is more important to limit campaign donations than to protect this free-speech right.

The free-speech question elicits uncommon agreement across party lines. More than 6 in 10 Republicans and Democrats believe campaign donations are a protected form of free speech, but fewer than half of independents (48%) agree.

Public attitudes about the issues involved in the court's Citizens United v. Federal Election Commission decision come from a nationwide Gallup survey sponsored by the nonpartisan First Amendment Center. The poll was conducted Oct. 1-2, 2009, shortly after the high court heard concluding arguments in the case.

Americans Favor Limits on Contributions

While corporations and unions are still barred under a 1907 law from making donations directly to federal candidates, the court's decision Thursday allows organizations to run ads in direct support of or opposition to specific candidates; it also overturns 2002 McCain-Feingold restrictions on how close to elections corporate-sponsored ads can run.

"More specifically, 61% of Americans think the government should be able to limit the amount of money individuals can contribute to candidates and 76% think it should be able to limit the amount corporations or unions can give."

The 5-4 decision in the Citizens United case underscores the tension between protecting free speech and giving certain groups or individuals undue influence over election campaigns. Another poll question asked Americans to weigh the two considerations and say which is the greater priority for them: placing limits on how much individuals, corporations, and unions can contribute to campaigns or protecting the rights of these groups to freely support political campaigns. By 52% to 41%, Americans say placing limits on contributions is paramount for them.

More specifically, 61% of Americans think the government should be able to limit the amount of money individuals can contribute to candidates and 76% think it should be able to limit the amount corporations or unions can give.

Thus, it would appear that, regardless of Americans' support for the principle that campaign donations are a form of political speech, and that corporations and unions should get the same treatment as individuals, they are likely to have significant concerns about the practical effect of the court's ruling, that is, more corporate and union money being poured into elections.

Bottom Line

Prior to now, while corporations and unions could run issue-based ads, they could not spend a penny on candidates, except through political action committees. Now that they can run such ads, the country could be in store for major changes in the way campaigns are conducted. Does the ruling square with Americans' views on campaign contribution limits? In some respects, yes. In others, it depends on whether Americans decide that independent expenditures are tantamount to political "contributions" or are merely free speech.

More Cartoons About The Supreme's First Amendment, Big Wallet Decision

Cartoonists React To The Supreme's First Amendment, Big Wallet Decision

"Obama Turns Up Heat Over Ruling on Campaign Spending"

NY Times:

President Obama took aim at the Supreme Court on Saturday, saying the justices had “handed a huge victory to the special interests and their lobbyists” with last week’s 5-to-4 decision to lift restrictions on campaign spending by corporations and unions.

The decision will have major political implications for this year’s midterm elections. After it was announced, Mr. Obama immediately instructed his advisers to work with Congress on legislation that would restore some of the limits the court lifted. But in his weekly address on Saturday, he sharply stepped up his criticism of the high court.

“This ruling strikes at our democracy itself,” Mr. Obama said, adding: “I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections.”

How much the administration can do about the ruling remains unclear, although Mr. Obama said he had instructed his advisers to work with Congress on a “forceful, bipartisan response.”

That process got under way Friday, a White House official said, when Norm Eisen, Mr. Obama’s special counsel for ethics and government reform, met with two leading Democrats — Senator Charles E. Schumer of New York and Representative Chris Van Hollen of Maryland — to begin talks on how Congress might proceed.

The sharply divided decision overturned parts of a 2002 law — known as the McCain-Feingold campaign finance law, after the two senators who sponsored it — that severely restricted political advertising paid for by corporations and unions in the 30 days before a presidential primary and in the 60 days before general elections.

The five justices who sided with the majority characterized it as a victory for the First Amendment and freedom of speech. The ruling was expected to unleash a torrent of attack advertisements in the coming midterm elections; many analysts said it would benefit Republicans in a year when Democrats are already on the defensive.

But the decision could also have a significant effect on Mr. Obama’s expansive domestic agenda. The president has angered many of the big-money industries — like banks and insurers — that would be inclined to dig deep into their pockets to influence the outcome of the president’s legislative proposals.

Perry vs. Schwarzenegger Update: Is Homosexuality A Choice & How Does Marriage Equality Harm Straight People

Gerry Shih on yesterday's session focusing on whether homosexuality is a choice:

With testimony in the Perry v. Schwarzenegger trial expected to end by the middle of next week, the discussion Friday centered again on the question of whether sexuality is an innate trait or something that can change, and possibly be controlled. On Friday, lawyers for those who seek to overturn Proposition 8, the 2008 ballot measure that banned same-sex marriage in the state, called as their final witness Gregory M. Herek, a research psychologist at the University of California, Davis.

In a recent survey he conducted, 88 percent of gay men and 68 percent of lesbians said they felt they had no choice about their sexual orientation, Dr. Herek said. For the vast majority of lesbians, gay men and bisexuals, he said, “they have experienced no choice or very little choice.” He said that terms such as homosexual, heterosexual and bisexual may be oversimplified labels, and offered a complex definition of homosexuality.

Dr. Herek noted that “most people display consistency in their attractions and behaviors,” but he added, “We do see some examples where some people express attraction but do not have the sexual behavior.”

The defense questioned Dr. Herek about the reliability of research in the area of homosexuality. Under cross-examination by Howard C. Nielson Jr. of the defense team, Dr. Herek noted that the definition of sexual orientation has been keenly debated within academic circles.

Dr. Herek said that by 1975, both the American Psychiatric Association and the American Psychological Association had removed homosexuality from any list of mental disorders.

Update | 5:11 p.m. For four hours on Friday afternoon, Howard C. Nielson Jr., a defense lawyer, and Dr. Gregory M. Herek continued to delve into issues surrounding the definition and variability of sexual orientation.

By arguing that homosexuality is a choice, the defense hopes to weaken the plaintiffs’ portrayal of gay marriage as a civil right that should not be denied to a minority group.

Margot Talbot on Wednesday's session on the "harm" marriage equality causes straight marriage:

One of the key points that the lawyers defending Proposition 8 are trying to make is that allowing same-sex marriage necessarily harms marriages between men and women. When you think about it, this is a pretty difficult argument to give substance to: How would the harm be wrought, exactly? Would heterosexual couples in love and in the fevered grip of wedding plans and planners decided to boycott marriage if gay couples across the country could marry? Or does it somehow just tarnish the institution by association—in which case I think you have a plausible argument that the fear of harm is based on prejudice towards gays and lesbians—the legally (and morally) problematic “irrational animus.” Last week, one of the lawyers cross-examining a witness for the Olson and Boies team seemed to be trying to build a case that homosexual couples were less likely to be monogamous, and that in itself would undermine the institution of marriage. But of course, many heterosexual husbands and wives commit adultery. We don’t prevent, say, hot celebrities or libidinous politicians from marrying, even though they might be more likely to fool around than some of us.

This week, the anti-gay marriage side is stressing a different mechanism of harm. It came up yesterday afternoon, while the defense’s lead lawyer, Charles Cooper, was questioning the plaintiffs’ witness M.V. Lee Badgett, an economist at the University of Massachusetts, Amherst. According to Lisa Leff of the AP, “Cooper spent several hours with Badgett trying to demonstrate that traditional male-female marriages suffered after same-sex marriages became legal in the Netherlands in 2001. He introduced a number of charts showing divorce and single parenthood rates increased while marriage rates fell in that country.”

As it happens, this is an interpretation of the facts with a checkered history behind it.

Weekly Radio Address: "Fighting for the Public Against Special Interests"

WhiteHouse.gov:

The President talks about his first year fighting against special interests and barring lobbyists from his Administration, as well as the fight to come in the wake of a recent Supreme Court decision.

Free Speech Now Auctioned To Highest Bidder (cartoons)

Activist Judges On Supreme Court Over Turn Established Precedent & Hand The Keys To America To Big Money

From the NY Times:

The Supreme Court has handed a new weapon to lobbyists. If you vote wrong, a lobbyist can now tell any elected official that my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election.

"We have got a million we can spend advertising for you or against you — whichever one you want,’ ” a lobbyist can tell lawmakers, said Lawrence M. Noble, a lawyer at Skadden Arps in Washington and former general counsel of the Federal Election Commission.

The decision seeks to let voters choose for themselves among a multitude of voices and ideas when they go to the polls, but it will also increase the power of organized interest groups at the expense of candidates and political parties.

It is expected to unleash a torrent of attack advertisements from outside groups aiming to sway voters, without any candidate having to take the criticism for dirty campaigning. The biggest beneficiaries might be well-placed incumbents whose favor companies and interests groups are eager to court. It could also have a big impact on state and local governments, where a few million dollars can have more influence on elections.

The ruling comes at a time when influence-seekers of all kinds have special incentives to open their wallets. Amid the economic crisis, the Obama administration and Congressional Democrats are trying to rewrite the rules for broad swaths of the economy, from Detroit to Wall Street. Republicans, meanwhile, see a chance for major gains in November.

Democrats predicted that Republicans would benefit most from the decision, because they are the traditional allies of big corporations, who have more money to spend than unions.

In a statement shortly after the decision, President Obama called it “a green light to a new stampede of special interest money in our politics.”

As Democrats vowed to push legislation to install new spending limits in time for the fall campaign, Republicans disputed the partisan impact of the decision. They argued that Democrats had proven effective at cultivating their own business allies — drug companies are spending millions of dollars to promote the administration’s health care proposals, for example — while friendly interest groups tap sympathetic billionaires and Hollywood money.

Perry vs. Schwarzenegger Update: Marriage Ban Motivated By Hatred

Wall St Journal:

Proponents of same-sex marriage argued in federal court Thursday that a California ban on gay marriage was motivated by hostility toward gays and lesbians, rendering the law unconstitutional.

Attorneys representing couples who want to wed are preparing to rest their case Friday in the federal court challenge to California's Proposition 8, turning over the courtroom to supporters of the gay-marriage ban.

The trial—the first to bring a state gay-marriage ban into federal court—will decide whether Proposition 8, a 2008 voter initiative that limits marriage to a man and a woman, violated the U.S. Constitution because it codifies discrimination ...

Building their argument that Proposition 8 was motivated by discrimination, the plaintiffs on Thursday called to the stand a hostile witness who had asked to be dismissed as a defendant in the case because he feared for his safety.

During the campaign for Proposition 8, Hak-Shing William Tam had likened gay marriage to legalizing prostitution and sex with children. On the stand, Mr. Tam said he wasn't hostile to gays, but believed they are more likely to molest children.

Over the past two weeks, lawyers representing same-sex California couples who want to marry have argued that the law not only harms gays and lesbians, but was driven by a hatred of them.

The defense has labeled much of the plaintiffs' testimony so far as irrelevant. "Nearly all of the testimony has been strictly an emotional appeal to the court with testimony that, though moving, doesn't relate to the legal issues," said Andrew Pugno, the general counsel for ProtectMarriage.com, which is defending the ban in the trial ...

Proponents of same-sex marriage have called to the stand individuals who have given sometimes tearful testimony on the discrimination faced by gays and lesbians.

On Tuesday, the court heard from the mayor of San Diego about why he came to support same-sex marriage for his lesbian daughter, and on Wednesday from a Colorado gay man whose parents put him through "reversal therapy" in his youth.

"We are putting discrimination against gays and lesbians on trial. We are showing what the human costs of that discrimination are," said David Boies, one of the lawyers representing the pro-gay-marriage side. "Every citizen has the right to decide for themselves what is moral, but no group of citizens has the right to discriminate against a minority."

Through expert testimony, the plaintiffs have sought to prove that allowing same-sex marriage doesn't harm society, but banning it does harm to gays and lesbians.

The plaintiffs hope that, plus the personal testimonies, could help make their case that the ban is unconstitutional, in part, because the law singles out a particular group of people.

"They are arguing that there is nothing more than outdated social mores and outright discrimination behind the opposition to same-sex marriage," said David Masci, a senior research fellow at the nonpartisan Pew Research Center's Forum on Religion and Public Life. "They want to make sure they insulate themselves from what is coming from the defense—the argument that there are very legitimate reasons why some people in our society are opposed to this."

In a two-day cross-examination of witness Gary Segura, a Stanford University political scientist, the defense challenged the idea that gays and lesbians are politically powerless group, and thus deserve special consideration by the court.

Defense counsel David Thompson suggested that gays and lesbians have abundant political influence and support, and don't require special protection against laws affecting them.

Today's Brown vs. Board of Education II (aka Perry vs. Schwarzenegger) Update

Malia Wollen:

Update 3:58 p.m. Pacific Time | While Thursday morning’s testimony tended toward tax revenues and city budget concerns, the tone of the afternoon’s proceedings shifted to more esoteric academic themes with names like “structural stigma” and “minority stress.”

The plaintiffs called Ilan H. Meyer, an associate professor of clinical socio-medical sciences at Columbia University, to the stand to illustrate how Proposition 8 harms the mental health of gay men and lesbians and undermines their right to equal protection under the law.

In his research, Dr. Meyer used the term “structural stigma” to describe being denied access to a right which, for society, has symbolic meaning. “Young children do not aspire to be domestic partners,” said Dr. Meyer. “Marriage is a common, socially approved goal.”

“In your view is Proposition 8 a form of structural stigma?” asked Christopher Dean Dusseault, a lawyer for the plaintiffs.

“Yes, Proposition 8 denies gays and lesbians access to the institution of marriage,” said Dr. Meyer. “We are raised to think that there are certain things that we want to achieve in life. Proposition 8 says that gays and lesbians cannot reach that goal.”

Gays and lesbians also suffer what Dr. Meyer calls “minority stress,” or stress resulting from prejudice, stigma, and discrimination. Such stress can result from obvious discriminatory acts like name calling, or from more subtle stresses like those experienced by long-time same-sex partners when filling in a form with categories limited to, “married,” “single,” or “divorced,” said Dr. Meyer.

Next up, cross-examination.

Original Post 12:14 p.m. Pacific Time | On Wednesday afternoon, lawyers for the plaintiffs in Perry v. Schwarzenegger focused on the social impact of same-sex marriages. On Thursday, the discussion turned to economics.

Edmund A. Egan, the chief economist for the City and County of San Francisco, was the first witness. Christine Van Aken, a lawyer for the plaintiffs, focused her questions on what she called the “material
economic impact” of same-sex marriage on the city and county.

“I’ve identified several ways in which the prohibition of same-sex marriage has a negative economic impact on San Francisco,” Mr. Egan said. “If same-sex marriage were legalized, you would see an increase in number of married couples. Married individuals tend to accumulate more wealth than single individuals.”

During his testimony, Mr. Egan said the legalization of same-sex marriage would bolster the local economy by increasing consumer spending, sales tax revenue and property tax revenue. He also said that legalizing same-sex marriages would increase the number of employers extending health insurance coverage to married same-sex partners, thus decreasing the amount of money the city spends on the uninsured.

“Married individuals are healthier on average and behave themselves in healthier ways than single individuals,” Mr. Egan said. “There is a well-known connection in economics between the health of work force and work-force productivity. Higher productivity leads to higher wages, and higher wages lead to higher taxes for the city.”

Mr. Egan described same-sex weddings as a kind of gold rush for the city, saying they would mean an additional $35 million a year in spending.

Peter A. Patterson, a defense lawyer who handled the cross-examination, questioned the methodology used to project the number of same-sex marriages that would occur in the city in the future. “You assume that same sex-couples will get married at a similar rate?” Mr. Patterson asked, referring to the number of same-sex couples who married in California between May and November of 2008 ...

Mr. Patterson suggested that the high number of same-sex marriages during that period represented “pent-up demand” and not a long-term trend the city could depend on for income.

Today's Brown vs. Board of Education II (aka Perry vs. Schwarzenegger) Update

In the Civil Rights trial of the Century, yesterday, the Supreme Court killed putting each day's testimony on YouTube, Eve Conant noted the difference in the number & passion of each side and Gary Shih described what happened in the trial itself.

Eve Conant:

Perhaps some of the most interesting people engaged in the Perry v. Schwarzennger trial this week in California are those who sit quietly in the main courtroom, observing. There is the older gay couple, David Bowers and Bruce Ivie, who were married legally in California before Prop 8 passed but want the same rights for their friends. They seem like gentle but determined watchdogs. "We are going to be here every day," says Ivie. The courtroom is small and hot and it's hard not to notice small physical reactions to testimony, like how Bowers seemed unable to breathe and then needed a Kleenex when the young plaintiff Jeff Zarrillo described how coming out "is a very personal and internal process." There is the African-American lesbian sitting right behind me, and the four young lawyers who want to see what one of them calls "our generation's Brown v. Board of Education." Inside and outside of the courtroom are journalists, legal reporters, and the lesbian legal expert who is blogging but still hasn't made the leap to Twitter. On the first day of trial, after a cold morning vigil outside, a lesbian couple in the elevator joked about one of them having hat hair. "She's going on TV! She's going to be interviewed!" said her wife, or perhaps domestic partner, or perhaps girlfriend. "I told her not to wear that hat," they both laughed, but the mussed-up one in question still did her best to press down her spiked hair.

If there are gay-marriage opponents, they are keeping a low profile compared to those who support it. The first morning vigil outside the courtroom, which also served as a quiet protest for Prop 8 supporters, has not been repeated. Carla Hass, communications director for ProtectMarriage.com says even the defense's legal team is outnumbered. "Look at their table and their overflow chairs," she says, indicated the long table where the Ted Olson and David Boies team is seated. "We've got probably a dozen attorneys working on this, they've got at least 40." (The difference is even more distinct in the second-floor cafeteria at lunchtime, which is filled with gay-marriage supporters and lawyers trying to grab a bite between sessions, with few defense lawyers, or gay-marriage opponents in sight).

Gerry Shih:

For nearly two hours on Tuesday afternoon, Professor George Chauncey, a Yale historian, gave the San Francisco courtroom presided over by Judge Vaughn Walker an overview of the history of discrimination against gay and lesbian Americans in the 20th century.

When Perry v. Schwarzenegger resumed on Wednesday morning, a defense lawyer, David Thompson, used examples — ranging from the success of the television show “Will and Grace” and the movie “Brokeback Mountain” to the support of gay civil rights from the state’s largest newspapers — to underscore the dramatic change in social attitudes toward gay men and lesbians in recent decades.

The Marriage Equality Bigots Are Not Willing To Proclaim Their Prejudice For The World To See

They're using un-credible, specious arguments to block the posting of testimony on YouTube. From the NY Times: (also see Today's Brown vs. Board of Education: Perry vs. Schwarzenegger):

The Supreme Court indicated Monday that it might soon have something significant to say about whether and when video coverage of federal trials is appropriate.

Shortly before a federal trial over same-sex marriage began in San Francisco, the court temporarily blocked a judge’s plan to broadcast the trial on the Internet. Saying they needed more time to consider the issues, the justices said their order would remain in effect until Wednesday at 4 p.m. Eastern time.

The Supreme Court does not allow video coverage of arguments in its courtroom, and cameras are routinely banned from most federal courtrooms. In an experiment begun last month, the United States Court of Appeals for the Ninth Circuit, which includes the Federal District Court in San Francisco, agreed to allow federal judges to permit cameras in civil cases.

The trial judge in the San Francisco case, Judge Vaughn R. Walker, had intended to allow streaming video to several federal courthouses around the nation and had planned to post it after the end of each day’s proceedings on YouTube. The Supreme Court order allowed only “streaming to other rooms” within the San Francisco courthouse, where an overflow crowd of journalists and spectators attended the trial’s opening on Monday ...

In papers filed Saturday in the Supreme Court, Charles J. Cooper, a lawyer representing opponents of same-sex marriage, argued that a stay was needed to prevent “harassment, economic reprisal, threat and even physical violence” against witnesses prepared to testify in favor of Proposition 8. Some witnesses said they would withdraw if the trial was broadcast, the brief said.

“Whether to broadcast trial court proceedings, especially in controversial, high-profile cases such as this,” Mr. Cooper said in urging the Supreme Court to intercede, “is an issue of surpassing national importance.”

In a response filed Sunday, Theodore B. Olson, representing proponents of same-sex marriage, said the case would affect hundreds of thousands of gay men and lesbians in California and thus warranted broadcast coverage.

“Concerns about the possibility of compromised safety, witness intimidation or harassment of trial participants,” Mr. Olson added, “are utterly unsubstantiated and groundless speculation.”

All of the witnesses said to fear harassment were paid experts named after Judge Walker first noted the possibility of broadcast coverage, Mr. Olson wrote, adding that the views of these experts were already well known.

A coalition of news organizations also urged the Supreme Court not to grant a stay. Its brief noted that the case did not involve criminal fair-trial rights and would not be heard by a jury.

“Any witnesses will be testifying in open public court at the trial, with heavy accompanying publicity in the print and electronic media,” Thomas R. Burke wrote for the news organizations. “If the purported harms identified by petitioners exist at all, they will flow from the witnesses’ mere participation in the trial.”

What's Next In The Fight For Gay Civil Rights?

Apparently what many gay activists thought was a terrible idea in May (Taking The Fight To The Federal Courts Now: A Good Or Disasterous Idea?), now seems like a potential new way forward in the fight for equality. From the Wash Post:

Gay rights advocates across the country are regrouping after a crushing defeat at the ballot box in Maine, pledging to continue their state-by-state effort to promote marriage equality and to turn their attention to a federal court case in California.

On Tuesday, Maine became the 31st state to block same-sex marriage through a public referendum. Just over half the voters there repealed a state law that would have allowed same-sex couples to wed, a statute passed by the legislature in May and signed by Gov. John E. Baldacci (D). The law had been on hold, pending the vote.

Gay rights advocates had been optimistic about the Maine referendum, having collected more money, political support and volunteers than in other campaigns nationwide. Polls leading up to the vote indicated a dead heat on Question 1, as the measure was known.

Courts and legislatures have made it possible for gay men and lesbians to marry in five states, but Tuesday's results mirror what has happened in every state where the question of same-sex marriage has gone before voters.

"I think the reality is that we came very close but didn't succeed in dispelling the distractions and fears that are keeping a small slice of people from treating others fairly," said Evan Wolfson, executive director of Freedom to Marry, a national gay rights group. Wolfson, as well as spokespeople for other gay rights organizations, blamed an opposition ad campaign for stoking voters' fears.

The campaign against same-sex marriage in Maine drew heavily from a similar effort in California last year; there, a ballot measure known as Proposition 8 overturned the state Supreme Court ruling allowing such unions. Maine voters were exposed to TV commercials, such as one featuring parents lamenting that their children were being taught about same-sex marriage in school, that were nearly identical to ads used in California.

For the gay rights movement, the defeat is another setback to its long-held strategy of building the case for marriage equality state by state. Historically, the tactics have been to target places where conditions seem favorable, and Maine, characterized by its governor as a libertarian state, seemed to fit that criterion.

Still, advocates say the strategy remains effective. They point to Tuesday's balloting in Kalamazoo, Mich., where voters approved an anti-discrimination ordinance that provides gays protections in employment, housing and public accommodations. Another victory appeared to be likely in Washington state, where incomplete returns indicate that a majority of voters have approved the legislature's expansion of domestic partnership rights.

Advocates say there was a partial victory even in Maine, where the vote was closer than it had been in previous campaigns. "We're hopeful that it's a signal that there is increasing support for gay couples to marry," said Dan Hawes, field director for the National Gay and Lesbian Task Force. "Nationally, we're going to continue education efforts to move the needle of public opinion, especially in California."

California remains a key battleground. Some gay rights organizations are considering putting the same-sex marriage issue before voters there again as early as next year.

But most of the focus on the state stems from a federal lawsuit challenging Proposition 8 that is expected to go to trial in January. Lawyers David Boies and Theodore B. Olson, onetime opponents in the legal battle over the 2000 presidential election, are representing same-sex couples in the case, arguing, among other things, that Proposition 8 violates gays' right to due process and equal protection under the Constitution.

The federal case marks a shift in direction for the gay rights movement. Activists and legal strategists historically have avoided taking the issue to a narrowly divided Supreme Court, fearing a major setback. And though not all gay rights advocates agree on the timing, there is a growing consensus that there may never be a perfect time for a federal challenge.

"The whole idea that somehow you have to choose between federal and state work is a false 'either or.' The reality is, every movement needs to do both," Wolfson said. "You don't win on the federal level without engaging in those conversations and legal victories in states and communities. At the same time, you want to be part of a national conversation that helps create a climate for more states to move in the right direction."

"The last of the branches controlled by conservatives" Begins To Review The Changes Obama Has Wrought

Wash Post:

The Supreme Court this week will hear a case that raises bedrock questions about the ability of the market to set "reasonable" corporate compensation, and experts say its outcome could hold important clues about the judiciary's view of extraordinary interventions in the economy by the executive branch and Congress.

At issue in Jones v. Harris Associates is whether investment advisers charged too much for their services to a mutual fund under their control. But it contains natural parallels to the current controversy over executive compensation at publicly held companies.

"The fact that the Supreme Court is looking at compensation again is in itself extraordinary," said Charles M. Elson, director of the Weinberg Center for Corporate Governance at the University of Delaware, adding that the court's history is to defer to the markets rather than to intervene. "But I think it also demonstrates the political reality that compensation is sort of foisted onto the national scene, whether in Congress and now certainly at the Supreme Court."

It may also set up what could be years of judicial review of the measures that the Obama administration and Congress have taken -- and envision -- to deal with the worst collapse of the economy in 75 years.

"It's like the thin edge of the wedge," said William A. Birdthistle of the Chicago-Kent College of Law, who has closely followed the mutual fund case. He said the economic solutions of the Obama administration and a Congress solidly in Democratic hands will be judged by "the last of the branches controlled by conservatives."

The case is just one of many that the business community is watching. Another could affect when the statute of limitations starts to run in certain types of cases. Cases involving the power of regulatory agencies are likely to come up later, as the Obama administration takes a more assertive role in matters such as antitrust or the environmental regulation of greenhouse gases. It also remains unclear how the court will respond to a Solicitor General's Office that is more likely to oppose businesses, as it is doing in a case against the National Football League's power to negotiate exclusive licensing agreements.

Business-related cases will also pose an early and interesting test for the court's newest justice, Sonia Sotomayor, who was a corporate lawyer and has ruled on many business cases as a Manhattan district judge and as a member of the business-heavy U.S. Court of Appeals for the 2nd Circuit. "She may have more corporate experience than the rest of the court combined," Birdthistle said, and the docket laden with business cases allows her "immediately to have a disproportionate impact" compared with a typical first-year justice.

In the case that comes to the court on Monday, three investors in the Oakmark family of mutual funds have alleged that the funds' manager, Harris Associates, violated its fiduciary duty by charging investors "excessive" fees -- more than twice the amounts Harris charged for advising other clients.  <Continue reading.>

The Momentous Supreme Court Case That You've Probably Never Heard Of

From the NY Times:

The Supreme Court will cut short its summer break in early September to hear a new argument in a momentous case that could transform the way political campaigns are conducted.

The case, which arises from a minor political documentary called “Hillary: The Movie,” seemed an oddity when it was first argued in March. Just six months later, it has turned into a juggernaut with the potential to shatter a century-long understanding about the government’s ability to bar corporations from spending money to support political candidates.

The case has also deepened a profound split among liberals, dividing those who view government regulation of political speech as an affront to the First Amendment from those who believe that unlimited corporate campaign spending is a threat to democracy.

At issue is whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. Re-arguments in the Supreme Court are rare, and the justices’ decision to call for one here may have been prompted by lingering questions about just how far campaign finance laws, including McCain-Feingold, may go in regulating campaign spending by corporations.

The argument, scheduled for Sept. 9, comes at a crucial historical moment, as corporations today almost certainly have more to gain or fear from government action than at any time since the New Deal.

The court’s order calling for re-argument, issued in June, has generated more than 40 friend-of-the-court briefs. As a group, they depict an array of strange bedfellows and uneasy alliances as they debate whether corporations should be free to spend millions of dollars to support the candidates of their choice.

The American Civil Liberties Union and its usual allies are on opposite sides, with the civil rights group fighting shoulder to shoulder with the National Rifle Association to support the corporation that made the film.

To the dismay of many of his liberal friends and clients, Floyd Abrams, the celebrated First Amendment lawyer, is representing Senator Mitch McConnell of Kentucky, the Republican leader, a longtime foe of campaign finance laws.

“Criminalizing a movie about Hillary Clinton is a constitutional desecration,” Mr. Abrams said.

Most of the rest of the liberal establishment is on the other side, saying that allowing corporate money to flood the airwaves would pollute and corrupt political discourse.

“This is rough business,” said Fred Wertheimer, a veteran advocate of tighter campaign regulations. “We’re not dealing with campaign finance laws. We’re dealing with the essence of power in America.”

Sotomayor's Moment

A photo from Sotomayor's swearing in ceremony. Her mother is holding the bible and, this time, Chief Judge Roberts is reading the oath from paper and not reciting it from memory.

Did Progressivism Win Or Lose At The Sotomayor Hearings?

From the Wash Post:

"I want a justice," said  Sen. Benjamin L. Cardin (D-Md.), a veteran politician taking part in his first Supreme Court confirmation, "who will continue to move the court forward in protecting . . . important civil rights. I want a justice who will fight for people like Lawrence King who, at the age of 15, was shot in a school because he was openly gay. I want a justice who will fight for women like a 28-year-old Californian who was gang-raped by four people because she was a lesbian. And I want a justice who will fight for people like James Byrd, who was beaten and dragged by a truck for two miles because he was black."

So, Cardin asked the nominee: Don't courts have to take such factors as race into account?

Sotomayor paused. "Well," she replied, "it depends on the context of the case that you're looking at."

The hearings were a moment of history that liberals had awaited for 15 years: an opportunity for a Democratic president's Supreme Court nominee to inject into the public dialogue fresh ideas about the Constitution and the law, beginning to recalibrate a court that has gravitated to the right.

Yet Sotomayor did not articulate such a vision. In answering Cardin, and in scores of other times during four intense days in the witness chair, she eluded efforts of Democrats and Republicans alike to draw out any statement of liberal thought.

Sotomayor's inscrutability last week has raised fundamental questions: about the Obama administration's approach to future nominations, the direction of the court, the way Senate Democrats are using the benefits of their majority and the influence of the American left.

At the heart of those questions is another one, which has ignited a debate among legal scholars, advocates and members of Congress. Did the hearings reveal a true absence of liberal ideas in the 55-year-old judge President Obama chose to fill his first Supreme Court vacancy? Or did they reflect sheer political pragmatism by someone, coached by White House staff members and following the model of other recent nominees, seeking to maximize support by avoiding controversy?

Either way, Sotomayor's reticence, if not her nomination, has disappointed legal thinkers on the left. The hearings "did serious damage to the cause of progressive thought in constitutional law," said Geoffrey R. Stone, a University of Chicago Law School professor who was dean there when Obama joined its faculty. Doug Kendall, president of the Constitutional Accountability Center, a liberal think tank, called them "a totally missed opportunity. . . . The progressive legal project hit rock bottom [last] week."...

At her hearings, she distanced herself from public remarks off the bench that, according to the GOP, suggest a gender and ethnic bias. She distanced herself, too, from Obama's view that a judge should have empathy -- an idea floating within liberal legal thought. And she concealed her views on issues important to the left, including abortion, gun control and same-sex marriage, as well as the civil rights matters Cardin raised.

More Sotomayor Confirmation Cartoons

 

Rachel Maddow Highlights GOP's Racism On Display At Sotomayor Hearing

Naive Senator Franken Asks A Question He Doesn't Already Know The Answer To

Proving just how green he is, Al Franken asked Sonia Sotomayor a question (about Perry Mason!) he did not know the answer to ... how inexperienced! Doesn't he realize these hearings are not about learning anything new, they're just a kubuki dance whereby "questions" are designed to elicit the answers the questioner wants to hear so that they can get their respective base all revved up to donate more money.

Oh, and by the way, Franken is also funny and cracks a few jokes.  This is the first time I've seen this from him in months. I guess he's finally relaxing.

Have The Sotomayor Hearings Hurt Obama's Ability To Pick A Progressive Next Time?

The NY Times thinks so.  How about you?

After three days of testimony, Judge Sotomayor appeared to have made no major mistakes that would jeopardize her confirmation in a Senate dominated by Democrats. So both sides are trying to use the Judiciary Committee hearings to define the parameters of an acceptable nomination in case another seat opens up during Mr. Obama’s presidency.

By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with “empathy,” Republicans have effectively set a new standard that future nominees will be pressed to meet. The Republicans hope their aggressive questioning of Judge Sotomayor on race discrimination, gun control and the death penalty will make it harder for Mr. Obama to choose a more outspoken liberal in the future.

Liberal activists, by contrast, hope the hearings demonstrate that a Democratic president has nothing to fear from Republicans who have not rattled Judge Sotomayor. If she is confirmed by a commanding vote that includes a number of Republicans, the activists argue, they will have given Mr. Obama more political running room next time to name a more full-throated champion of liberal values ...

One lesson the White House has learned is to expect a fight on any nomination, fueling its desire for a strong vote for Judge Sotomayor. White House officials say they hope to generate momentum for the next one, though cautioning that each nomination is unique.

Several legal experts said Judge Sotomayor’s testimony might make it harder for Mr. Obama to name a more liberal justice next time.

She repudiated the president’s assertion that “what is in a judge’s heart” should influence rulings and rejected the liberal idea that the Constitution is a “living” document whose meaning evolves with society. Instead, she said the Constitution was “immutable” and did not change except by amendment. And she dismissed any role for foreign law in deciding cases, an influence some liberal legal experts argue should be considered.

Sotomayor Hearing Cartoons

 

 

The GOP's False But Effective Smear Casting Liberal Judges As Activists, Conservative Ones As Umpires

One of the things that has burned me over the years, and that is threatening to become a raging inferno during Sotomayor's hearings, is the oft repeated GOP charge that liberal judges are "activists" who make up law to suit their ideology while conservative judges mechanistically "apply" the law without cognition or emotion. And while progressives like EJ Dione below have pointed out the hypocrisy of this charge, Democratic politicians haven't been very effective at refuting the accusation ... until Sheldon Whitehouse yesterday. 

Progressives need to get better at getting this counter argument out because in many ways, this whole confirmation hearing isn't really about Sotomayor (who everyone, including Republicans, say will be confirmed) but is about setting the standards by which Supreme Court nominees are to be judged.  So if we want the American public to accept Obama's next nominee (one much more likely to progressively shift the balance of power on the court) we need to be laying the ground work now.  And preventing the GOP's mantra of 'liberal judge = activist = bad' while 'conservative judge = impartial umpire = good' from taking hold in the American zeitgeist is therefore absolutely critical.

Watch RI's Sheldon Whitehouse very effective rebuttal of the GOP's activist argument (I especially loved his counter to their common balls and strikes metaphor):

And here EJ Dione, quoting Whitehouse, provides an example of right-wing, judicial activism from the current Supreme Court:

Republican senators ... want to use the hearings to paint the moderately liberal Sotomayor as, at best, the outer limit of what is acceptable on the bench to justify the new conservative activism that is about to become the rule.

"They have more or less given up on defeating her, so they are going to engage in a framing exercise," Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary Committee, said in an interview. "They're trying to define a Republican worldview imported into the judiciary as the judicial norm for the country."

The goal, Whitehouse added, "is to define the political ideology" of the new conservative judiciary as "representing the mainstream and to tarnish any judges who are outside that mark."

If you wonder what judicial activism looks like, consider one of the court's final moves in its spring term.

The justices had before them a simple case, involving a group called Citizens United, that could have been disposed of on narrow grounds. The organization had asked to be exempt from the restrictions embodied in the 2002 McCain-Feingold campaign-finance law for a movie critical of Hillary Clinton that it produced during last year's presidential campaign. Citizens United says it should not have to disclose who paid for the film.

Rather than decide the case before it, the court engaged in a remarkable exercise of judicial overreach. It postponed its decision, called for new briefs and scheduled a hearing this September on the broader question of whether corporations should be allowed to spend money to elect or defeat particular candidates.

What the court was saying was that it wanted to revisit a 19-year-old precedent that barred such corporate interference in the electoral process. That 1990 ruling upheld what has been the law of the land since 1947, when the Taft-Hartley Act banned independent expenditures by both corporations and labor unions.

To get a sense of just how extreme (and, yes, activist) such an approach would be, consider that laws restricting corporate activity in elections go all the way back to the Tillman Act of 1907, which prohibited corporations from giving directly to political campaigns.

It is truly frightening that a conservative Supreme Court is seriously considering overturning a century-old tradition at the very moment the financial crisis has brought home the terrible effects of excessive corporate influence on politics.

In the deregulatory wave of the 1980s and '90s, Congress was clearly too solicitous to the demands of finance. Why take a step now that would give corporations even more opportunity to buy influence? With the political winds shifting, do conservatives on the court see an opportunity to fight the trends against their side by altering the rules of the electoral game? ...

So when conservatives try to paint Sotomayor as some sort of radical, consider that the real radicals are those who now hold a majority on the Supreme Court. In this battle, it is she, not her critics, who represents moderation and judicial restraint.

Cut Rate Sotomayor Caricatures

The Way To Get Obama To Come Out For Marriage Equality

Watch the President's safe, pragmatic answer to Brian Williams' question. Though I understand it, I'm not happy that he's not willing to politically take this civil rights issue on now.

I have an idea. I want someone to ask this constitutional scholar president what he proposes to do about the fact that a law in 12% of the states (now that NH has sided with marriage equality) is not being enforced and is not even valid in the rest of them.  Doesn't the Constitution specifically prohibit this? Here's Article IV:

Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

Isn't the President, and if not him, the Supreme Court, bound by the Constitution to force the other states to give "full faith and credit" to the laws of Massachusetts, Iowa, New Hampshire, Maine, Connecticut and Vermont?

Cornered

Sotomayor Political Cartoons

GOP Paints Sotomayor

Careful:

Straw Man:

Rachel Maddow On The Depths To Which The GOP Has Sunk Over Sotomayor

From Friday's show:

The White Man Is Being Oppressed

From Mike Madden:

Imagine a world where the nation's first black president has nominated a long-serving, highly educated judge to become the nation's first Latino Supreme Court justice, and only its third female justice. The president is popular with voters in and out of his political party; the opposition party is struggling to come back from two straight losing elections by showing it's got a vision for the future, as well as hoping not to fall completely out of favor with Latinos, the country's largest -- and fastest-growing -- minority group.

You might not think, in that world, that early opposition to the court nominee would involve accusing her of being racist and sexist, and steadily questioning her intelligence in a way that implies she's an affirmative action pick. That might seem, in fact, like a fairly self-destructive strategy, one that even the opposition party's most hardcore base would want to avoid. But welcome to 2009.

"White man racist nominee would be forced to withdraw," wrote Newt Gingrich -- whom conservatives routinely fall over themselves to praise as a driving force of ideas for the Republican Party, and who is also, at least for now, making noises about running for president in 2012 -- on Tuesday on his Twitter feed ...

The GOP establishment has mostly been trying to stay away from a fight many Republicans realize they can't win; with 17 years as a federal judge and a biography that Horatio Alger might have thought too trite to use in his rags-to-riches novels, Sonia Sotomayor is virtually a lock to be confirmed. Though Pat Roberts of Kansas has said he'll vote against her, GOP senators are not rushing to the ramparts. But the base wants a battle, and some conservatives seem unable to resist using Sotomayor's nomination to bring up the resentment-based, racial backlash politics that the country mostly avoided during last year's historic election.

The Sotomayor nomination has, at last, unleashed the pent-up id of a faithful, and fearful, GOP demographic -- the aging white male. Focusing on a New Haven, Conn., affirmative action case Sotomayor helped decide, a few lines from a 2001 lecture and a New Republic article questioning her intelligence that even the author is trying to back away from, the wingnut and pundit case against Sotomayor isn't particularly subtle. Or smart. But it does seem to involve more than a little of what Freud called "projection" ...

Not surprisingly, the idea of trying to block a Latina judge from the Supreme Court by stirring up resentment over affirmative action doesn't strike many observers as the best way to appeal to Latino voters. "If Sonia Sotomayor's name were John Smith, she'd be just as qualified, and no one would be charging affirmative action or reverse racism," said Mark McKinnon, a Republican strategist who left John McCain's presidential campaign last year because he didn't want to help it go negative against Obama. "To suggest as much is itself racist. And I think most Americans see right through the smoke screen."

The White House -- which wouldn't comment for this story -- isn't exactly trying to avoid reminding people of Sotomayor's Puerto Rican heritage, preferably with a soft-focus lens that plays up the historic nature of her nomination. If conservatives overreach in opposing her, the administration won't complain. "Latino voters are responding with a tremendous sense of pride and appreciation," said Fernand Amandi, executive vice president of Bendixen & Associates, a Democratic polling firm that surveyed Latino voters for Obama's campaign last year.

"The Hispanic community -- especially after the immigration issue -- is very sensitive to dog-whistle attack politics. During the immigration debate, Hispanics were never directly attacked or called out, but the message they received was they were not wanted here." The dog-whistle line may have already been crossed; it's not exactly a hidden message to call someone a race hustler.

Republicans who actually have to win elections don't seem interested in engaging in the backlash politics. "The approach that many of the senators and leadership is taking is, well, you know, let's give her a fair hearing and see what she has to say," said GOP pollster Glen Bolger ... A Republican consultant who advises GOP candidates on winning Latino votes, Lionel Sosa, said he expected most senators to ask plenty of questions about Sotomayor, then support her. "For Republicans to mount a filibuster is foolhardy," he said. "If a Republican doesn't care about getting reelected, and a Republican doesn't care about the image of the Republican Party, they may vote against her, but I think in the end, we'll see who the smart ones are and who the not so smart ones are by how they cast their votes."

But the conservative noise machine has a tendency to bleed into the GOP mainstream; Joe the Plumber went from the accidental hero of wingnut blogs to the centerpiece of the McCain campaign in less than a week last year. The confirmation process could wind up taking up most of the summer, and there's plenty of time for Republicans of all sorts to start calling Sotomayor names by the end of it. Which is probably just how the White House wants it.

Sotomayor Week In Review

From Michael Scherer:

Perhaps the roll out of Sonia Sotomayor could have gone better for Barack Obama. She could have announced a cure for cancer in her first public address, for instance, or a recently discovered stockpile of cash that will settle out the national debt. Kim Jong Il might have called from North Korea to say that he liked her so much he was giving up his nuclear ambitions.

But considering how the roll out went, the White House has little to complain about. By the end of the week, the Gallup poll showed that Americans by a 14-point margin had a positive response to her nomination, putting her on par with the response that greeted the announcement of John
Roberts. By contrast, the nominations of Samuel Alito and Harriet Myers had immediate positive reactions outweigh negative reactions by a margin 4 and 3 points, respectively.

The hickups that the White House did face--about a Youtube video showing her joking about making policy from the bench, and about her comment that minority women might be "better" at deciding cases than white men--have not proven themselves to be barriers to her nomination. As insurance, White House spokesman Robert Gibbs said today that she "if she had the speech to do all over again, I think she'd change that word"--better.

Meanwhile, the same comment has caused deep fissures within the Republican Party, which has long had a soft spot for debates over identity politics. Radio personalities and former politicians have been competing for the most controversial way to brand her a racist for those comments--a strategy that is sure to increase skepticism for the GOP from Hispanic voters. (The prizes go to former Rep. Tom Tancredo for calling the Latino civil rights organization a "KKK" without "the hoods or the nooses" and Rush Limbaugh, who accused her of "hating white people" and compared her to David Duke, a former member of the KKK.)

Such comments caused elected Republicans and their allies to lash out at the harsher comments. Texas Sen. John Cornyn, who is leading the GOP 2010 effort, said the comments of Rush were "not appropriate," "terrible" and "wrong." RNC Chairman Michael Steele chimed in today to say that Republicans should stop "slamming and ramming" on Sotomayor in favor of a more measured response.

This intraparty sideshow, with all its hot-button pressure points, now threatens to overshadow the actual discussion of Sotomayor's record. And while that may not be the same as a cure for cancer or a nuclear free North Korea, it's certainly a development that the White House welcomes.

Weekly Radio Address

"The President discusses the breadth and depth of experience held by his nominee for the Supreme Court. In the course of a life that began in a housing project in the South Bronx and brought her to the pinnacle of her profession, Judge Sonia Sotomayor accumulated more experience on the federal bench than any incoming Supreme Court Justice in the past 100 years, touching nearly every aspect of our legal system."

Sotomayor

Taking The Fight To The Federal Courts Now: A Good Or Disasterous Idea?

From the NY Times:

Eight and a half years after their epic partisan battle over the fate of the 2000 presidential election, the lawyers David Boies and Theodore B. Olson appeared on the same team on Wednesday as co-counsel in a federal lawsuit that has nothing to do with hanging chads, butterfly ballots or Electoral College votes.

Their mutual goal: overturning Proposition 8, California’s freshly affirmed ban on same-sex marriage. It is a fight that jolted many gay rights advocates — and irritated more than a few — but that Mr. Boies and Mr. Olson said was important enough to, temporarily at least, set aside their political differences ...

The duo’s complaint, filed last week in Federal District Court in San Francisco on behalf of two gay couples and formally announced Wednesday at a news conference in Los Angeles, argues against Proposition 8 on the basis of federal constitutional guarantees of equal protection and due process.

In the end, the two lawyers suggested, the case might take them, again, to the United States Supreme Court. While neither man claimed any special connection to the gay community — they are working “partially pro-bono,” Mr. Olson said — both said they had been touched by the stories of the same-sex couples unable to marry in California ...

Not everyone in the gay rights movement, however, was thrilled by the sudden intervention of the two limelight-grabbing but otherwise untested players in the bruising battle over Proposition 8. Some expressed confusion at the men’s motives and outright annoyance at the possibility that a loss before the Supreme Court could spoil the chances of future lawsuits on behalf of same-sex marriage.

“It’s not something that didn’t occur to us,” Matt Coles, the director of the LGBT project at the American Civil Liberties Union, said of filing a federal lawsuit. “Federal court? Wow. Never thought of that.”

But Mr. Olson said that their lawsuit — which also seeks an injunction blocking the marriage ban until the matter can be resolved — fell squarely in the tradition of landmark cases like Brown v. Board of Education.

“Creating a second class of citizens is discrimination, plain and simple,” said Mr. Olson, who served as solicitor general under Mr. Bush. “The Constitution of Thomas Jefferson, James Madison and Abraham Lincoln does not permit it”...

While five states now allow same-sex marriage, the federal government does not, and federal recognition has long been considered the Holy Grail in gay rights circles.

On Wednesday, veterans of the legal battles over same-sex marriage questioned the suit’s timing, particularly when a conservative majority holds sway in the Supreme Court ...

Laurence H. Tribe, an expert on constitutional law at Harvard, called the suit “a bold measure,” adding that “the fact that it’s being advanced by people at both ends of the ideological spectrum gives it a certain profile.”

Mr. Tribe said the question of timing could be argued from both sides.

“There’s a national trend which is obvious, with Vermont, Maine and Iowa,” he said, citing states that have recently legalized same-sex marriage. “But pushing it right now in front of a conservative court is not necessarily the wisest thing to do”...

 But Mr. Olson seemed confident that the makeup of the Supreme Court was right because of the presence of Justice Anthony M. Kennedy, pointing to two cases in which gay rights groups prevailed — a sodomy case in Texas and a constitutional ban on local antidiscrimination laws in Colorado — in which Justice Kennedy wrote the majority opinion. “We studied this very, very carefully,” he said, adding that it was difficult to tell clients, “‘Why don’t you go back and wait another five years?’”