Hello one and all. This is just a very brief advisory that we are going to be doing some updating to Emptywheel blog today. It should start in the next 30 minutes to hour from the time of this post. The site may be down briefly. Frankly we think we have it slicked out pretty well, but you never know when things hop off the drawing board and into practice.
Even if things go smoothly, as hoped, I am sure there will be some refining and testing to do throughout the day. In that regard, please bear with us and help us by giving us feedback. As always, we are doing the update to give you a better overall experience, so your input is valuable.
Thank you for your patience and assistance. Exciting times!
Also: McCaffrey is our engineer. May be more trouble than originally anticipated.
As the kerfuffle over SB-1062 dies down, politics march on here at ground zero in Arizona. The GOP runs the key Executive Branch offices such as governor and Secretary of State but, more importantly in many respects, also the state legislature, and as long as they do state politics will continue to be dominated by clusterfucks and cleanups. But Arizona has issues with their statewide federal elected officials too. The current manifestation is not McCain, Flake, nor even the Pleistocene era brainfart known as Trent Franks.
No, today’s issue is the once and forever self proclaimed liberal Democrat, Kyrsten Sinema. The transformation of Sinema, who aggressively sold herself as progressive liberal when seeking election, to a conservative Blue Dog toadie of the Minority centrist Dem leadership has been nothing short of astounding, especially for those of us who reside in her district and voted for her in 2012. She completely betrayed her base constituents in Arizona District 9. That is mostly a story for another day though, today’s story is not about discrete policy issues, but wholesale admission of the deceptive nature of Kyrsten Sinema’s incursion into AZ-9 to start with.
The baseline is this: Thursday, longtime Arizona Democratic Congressman Ed Pastor of AZ-7 announced his decision to retire and not seek reelection in 2014. Local politicians, from seemingly forever Maricopa Board of Supervisor’s member Mary Rose Wilcox to new and fairly refreshing voices like state legislature member Ruben Gallego, were literally stepping over one another to announce they would be running for Pastor’s seat. They are almost all minorities vying to represent a solidly minority district. And this is no small thing, as most all of them have to give up their current position to do so under Arizona’s “resign to run” law.
I was asked early on Thursday, not long after Pastor’s announcement, by a friend who supports liberal Dems nationwide, about Kyrsten Sinema jumping in. I thought it was a joke question and said so. Because it was crazy talk. The joke, however, was squarely on me and her other constituents in AZ-09. Yeah, Kysten Sinema, who pledged herself to AZ-09, started lusting after AZ-07 the second it was announced available.
Not that Kyrsten Sinema (see her Twitter feed, which is a litany of everything but her contemplated district switch) or her managers/spokespeople will admit it, or even address the subject, but she was ready to walk from second one. How do we know? Because the Arizona Republic/12 News (via the excellent Brahm Resnik) got a copy of an email to Sinema’s inside staff proving it.
So, why is this a big deal? Because it shows that, for first term congresswoman Kyrsten Sinema, her own raw narcissistic ambition, in a dynamic situation, immediately trumps loyalty to her constituents Continue reading
Yes, I framed the title of this article as if Governor Brewer has already vetoed the discriminatory piece of legislation known as SB-1062. Because it is a done deal and, frankly, has been from the start. I am thankful for all the support that national people, and regular citizens and groups from all over the country, have given to the veto effort, it has been extremely helpful in giving Brewer cover for the veto to come.
But it was coming anyway, and that was the case from the moment the bill was passed out of the state legislature late in the day last Thursday, February 20.
Indeed, as I write this, MSNBC has Joy Reid on the air babbling about “WHAT HAS TAKEN BREWER SO LONG!”. But that is symbolic of the hyperventilating demagoguery that has also been part of this discussion. The simple fact of the matter is that the bill was not even transmitted to the Governor’s office until Monday the 24th and Brewer did not return from her trip to Washington with other governors until late Tuesday the 25th. So, despite the hue and cry, the first real opportunity for Brewer to formally enter her veto is today. So, what is “taking so long”, at least until today, is not really a mystery in the least.
Now, let’s talk about why the veto was a foregone conclusion if you really understand Arizona politics. First off, let me start by saying that the often popular characterization of Jan Brewer as a raging ideological shrew is not particularly accurate on the whole. In fact, my take on her going back to the 1980s, when she was a somewhat amusingly unfiltered voice in the state house of Representatives, is that she is personally a decent lady, albeit one of a conservative bent. She is, however, an aggressively pragmatic politician, which factors into the following reasons she was going to veto SB-1062 from the get go.
Here are several of the critical reasons why:
1) Brewer took some hard lumps, and rightfully so, in the matter of SB 1070, the 2010 immigration enforcement law that was discriminatory in animus, and saw up close and personal what wrath could be generated by business and the national public on an issue like this. And, by the way, it should be noted that SB-1062 does not just provide enhanced sanction of discrimination against the LGBT community, but potentially a whole spectrum of other groups. These groups matter, and Brewer knows it.
2) Brewer has, for pretty much the entirety of her career been shepherded and advised by a close group of advisors, with the most primary one being Chuck Coughlin. There are others of current significance, including Grant Woods and Matthew Benson. Any move Brewer makes has involved advice from her inner circle and she listens to them. And she should, they have taken her way further than ever was imaginable when she started off in the legislature. What is one defining focus among all these critical advisors, but, again, notably Coughlin? The Arizona business community. Always. And the advisors, too, remember the 1070 strife and have seen the trend and movement in the country and courts on LGBT rights. Coughlin et. al are the definition of conservative, but they are not stupid.
3) The Arizona business community was hoping they never had to get to this point, but once SB-1062 was passed, there was simply no question but that they would lobby hard against signature by the Governor. It was far from just me who realized this, so too did one of the best local political reporters, Brahm Resnik. So too did long time Republican PR and political specialist Barrett Marson:
Just a few hours after passage of #SB1062, can there be any doubt that @GovBrewer will veto it? Biz groups en masse coming out against.
And boy have they. As a native here, it has actually been pretty refreshing to see big business step up on this one as they have. The Arizona Chamber of Commerce, Phoenix Chamber of Commerce, Southern Arizona Leadership Council, Intel, Apple, JPMorgan Chase, GoDaddy Group, Delta Air Lines, American Airlines, Marriott Hotels, all major newspapers and a plethora of others started stepping up almost immediately on passage
There are other reasons, including the nearly across the spectrum outcry of major Arizona politicians, including both US senators, and even several of the state legislators who originally voted for the pernicious SB-1062. But my original analysis, along with many here in the Copper State, was that veto was inevitable because of the business interest.
Once the issue of “if” there will be a veto was out of the way, the real question became “when”. As described above, the timing of the veto did not even start until presentment to the Governor’s office Monday, and, really, last night when Jan Brewer returned to Phoenix. But now it is time. The damage and unnecessary humiliation from the whackadoodle legislature is already significant. Governor Brewer IS going to veto this thing, and she should do herself, and the state, a serious favor and do so immediately. I started agitating for this before Brewer even returned from Washington DC.
The point was also made this morning by a prominent Democrat in the state senate, Anna Tovar:
Well, we are very optimistic she will veto the bill, but again, every second she doesn’t veto the bill is a black mark on the state of Arizona. We’ve asked the governor as of yesterday to swiftly veto this bill when she arrived yesterday, the second she got off the plane.
Arizona is in the headlines for all the wrong reasons, we want to focus on the priorities of our state.
That is a fact. Republicans are saying it, Democrats are saying it, the business community is saying it, I am saying it. Brewer has until late Saturday night to issue the veto before SB-1062 becomes law. It is widely expected she will do it, at a minimum, before Friday night’s Arizona Chamber of Commerce dinner honoring her, and that is almost certainly correct. But Friday afternoon is not soon enough. Not at all.
It is absolutely in the best interests of both the state of Arizona and Jan Brewer to issue her veto of SB-1062 immediately.
Do it now. Do not wait one more painful and damaging second.
Col. Morris Davis is, at least for my money, an American hero. He served and fought not only for his country, but for the Constitution he swore to protect. The subject of what happened to him at the hands of the very government he defended deserves a much longer, and deeper, dive than I have time for in this post. We will likely come back for that at a later date as it seems as if the legal case Col. Davis brought to correct the wrongs done to him will likely go on forever.
And the going on forever part is the subject of this post. Col. Davis was scheduled to have a hearing in United States District Court in Washington DC tomorrow in front of Judge Reggie Walton. But the hearing was postponed. And that is the problem, this is the FOURTEENTH (14th) TIME hearing on Col. Davis’ case has been delayed. One delay was due to a conflict on Judge Walton’s part, and one because the offices of Davis’ attorneys at the ACLU in New York were substantially damaged by Hurricane Sandy. Other than that, the delay has been at the hands of an intransigent and obstreperous DOJ. If the actions of the DOJ in relation to Col. Davis are not “bad faith”, it is hard to imagine what the term stands for.
Now, to be fair, it appears the latest delay was at the unilateral hand of the court, as yesterday’s minute entry order reads:
In light of the fact that potentially dispositive motions remain pending, it is hereby ORDERED that the status hearing currently scheduled for Friday, February 21, at 9:15 a.m. is CONTINUED to a date and time to be determined by the Clerk.
The problem with that is that the “dispositive motions” the court speaks of as being “pending” have been “pending” for a VERY long time, since July of last year. And the case itself has been going on since the complaint was filed on January 8, 2010.
Why is it taking so long you ask? Because of the aforementioned bad faith and obstreperousness of the Department of Justice, that’s why. To get an idea of just what is going on here, a little background is in order. Peter Van Buren gives a good, and relatively brief synopsis:
Morris Davis is not some dour civil servant, and for most of his career, unlikely to have been a guest at the Playboy Mansion. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis stated he would not use evidence obtained through torture. When a torture advocate was named his boss, Davis quit rather than face the inevitable order to reverse his position.
Morris Davis then got fired from his research job at the Library of Congress for writing an article in the Wall Street Journal about the evils of justice perverted at Guantanamo, and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled against the Obama Administration’s objections that the suit could go forward (You can read more about Davis’ struggle.)
Moving “forward” is however a somewhat awkward term to use in regards to this case. In the past two years, forward has meant very little in terms of actual justice done.
Yes, you read that right. Col. Davis was fired from the job he truly loved at the Congressional Research Service because he, on his own time as a private citizen, exercised his First Amendment right to speak. As one of Davis’ pleadings puts it:
Col. Davis was unconstitutionally removed from his position at the Library of Congress’ Congressional Research Service for writing opinion pieces in the Wall Street Journal and the Washington Post expressing his nonpartisan, personal views on the failures of the American military commissions established to try detainees at Guantánamo Bay, Cuba. His speech lies at the very core of the First Amendment and exemplifies the kind of speech that federal courts have been most vigilant in protecting from government retaliation.
The full pleading that quote came from, Col. Davis’ response to the government’s motion for summary judgment (one of the “pending dispositive motions”) can be found here and is a good read if you are interested in more background.
That is exactly what happened and what is at stake. And you do not have to take my word for it, Judge Walton thinks it is a solid and valid claim too. Here is language from Judge Walton in an order in late January 2010, not long after the case was filed:
The Court is satisfied that the plaintiff has established, at least based on the record before the Court at this time, that the likelihood of success on the merits and public policy prongs of the preliminary injunction standard weigh in his favor. Essentially, the record before the Court suggests that the plaintiff was terminated immediately after two specific opinion editorials he authored were published in national newspapers. Regardless of the defendants’ contention to the contrary, it appears that the content of the plaintiff’s published opinions was one of the reasons, if not the primary reason, he was fired, i.e., because the plaintiff took a position on the prosecution of detainees being housed at the United States military’s Guantánamo Bay facility which the Congressional Research Service felt would call into question its impartially as to any policy recommendation it would make and any research it would conduct on that issue. This conclusion is supported by the fact that the opinion articles were specifically referenced in the plaintiff’s termination letter, and also the timing of the letter, which was issued only several days after his writings were published. The plaintiff’s likelihood of success position therefore is well-founded, at least with respect to the record the Court now has before it. And as to the public interest prong, it cannot be questioned that government employees retain First Amendment rights. (citations omitted)
So, there is really no question but that protected First amendment rights were involved, and that Col. Davis was wrongfully fired for exercising them. Makes you wonder why the DOJ would string him out and fight so hard in a cue that is only about the rights and not even about the money damages he suffered as a result (that would have to be litigated in a separate action).
As the graphic at the top questions, why is the DOJ willing to give free speech rights to a terrorist at Guantanamo and not to Col. Morris Davis? Bad faith is the answer. Complete, scandalous, bad faith.
Just when Kevin Drum declared the “Friday News Dump” dead, comes proof news of said death was greatly exaggerated.
As Josh Gerstein and others have reported, the plea will be entered this afternoon:
Under the terms of the agreement, Kim will plead guilty to a single felony count of disclosing classified information to Rosen in June 2009, and serve a 13-month prison sentence. Judge Colleen Kollar-Kotelly would have to accept the sentence or reject it outright?, in which case Kim could withdraw his plea. Kim would also be on supervised release for a year, but would pay no fine.
Judge Kollar-Kotelly is expected to accept the guilty plea at today’s hearing, but will not impose a sentence until sometime later.
Well, that is kind of a big deal dropped out of nowhere on a Friday afternoon.
As you may recall, this is the infamous case where the Obama/Holder DOJ was caught classifying a journalist, James Rosen of Fox News, as an “aider and abettor” of espionage. As the Washington Post reported, the scurrilous allegation was clear as day in a formal warrant application filed as an official court document:
“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.
The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.
The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.
As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.
“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”
“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”
Of course, the fully justifiable uproar over the Rosen treatment by DOJ eventually led to “new guidelines”, being issued by the DOJ. The new guidelines are certainly a half step in the right direction, but wholly unsatisfactory for the breadth and scope of the current Administration’s attack on the American free press.
But now the case undergirding the discussion in the Stephen Kim case will be shut down, and the questions that could play out in an actual trial quashed. All nice and tidy!
Frankly, I have mixed emotions about the reported Kim plea itself. It is, all in all, a pretty good deal for Kim and his attorney, the great Abbe Lowell. The case is done, bad precedent does not get etched into a jury verdict and appeal, and the nightmare has an end in sight for the defendant, Stephen Kim. All things considered, given the seriousness of the espionage and false statement charges in the indictment, 13 months is a good outcome. And it is not a horrible sentence to have as a yardstick for other leakers (were I Ed Snowden and Ben Wizner, I would like this result). By the same token, the damage done by the ridiculous antics and conduct of the DOJ in getting to this point is palpable. It will leave a stain that won’t, and shouldn’t, go away.
That still leaves the matter of Jeffrey Sterling, and reporter James Risen, though. Whither DOJ on that? And it is an important question since the much ballyhooed and vaunted “New Media Policies” announced by DOJ left wide open the ability to force Risen (and others that may some day be similarly situated) to testify about his sources of face jail for contempt.
Now that the super exciting Pro Bowl is over (shoot that thing and put us all out of its worthless misery), we are down to just one last football game. But it is a good one, with the top ranked team in each conference representing, and the best offense versus the best defense. And all that jazz.
And, really, what else is there to say about the game at this point? It has been the fascination of sports, general and entertainment media for two weeks of hype now. I could take you through the normal rundown on the teams, but why? My one real take is that the game boils down not to Denver’s offense or Seattle’s defense, but rather to Denver’s defense. Peyton and the Broncos will score some points no matter how well they are defended. The same cannot necessarily be said about the Seahawks. So, if the Broncos defense plays big, Denver wins. If not, they don’t.
Can’t wait to find out; will be one hell of an exciting game to watch. If you can’t wait and want a simulation, this Breaking Madden piece is pretty great.
So, let’s talk for a bit about the game itself in terms of what it means and does for the host city. Does hosting a Super Bowl mean as much to a city as is commonly claimed?
Here is a report on the effects of 2008 Super Bowl XLII on the greater Phoenix area by the Arizona State University WP Carey School of Business. The results claim:
Super Bowl festivities generated a record $500.6 million in direct and indirect spending by visiting fans and organizations, according to the newly released Super Bowl impact study produced by the W. P. Carey MBA Sports Business program.
The gross impact of a half billion dollars in the Arizona marketplace brings rejuvenation to an economy that has been weakened by a recession.
The ripple effect of return visits, family and company relocations, and word-of-mouth marketing nationally could equal or exceed the record Super Bowl spending in years to come.
That is in line with many of the claims that are commonly pitched for Super Bowls, but is that right?
Well, maybe not. There are a lot of demands on a host city, and they really add up. One of the best journalists out there writing on the intersection of sports and society is Travis Waldron, and he reported this on the eve of last year’s Super Bowl in New Orleans:
Those estimates, though, are likely fool’s gold, according to an assortment of academic research into the actual economic impact of Super Bowls and other major sporting events. When professors Victor Matheson and Robert Baade studied the economic impact of Super Bowls from 1973 to 1997, they found that the games boosted city economies by about $30 million, “roughly one-tenth the figures touted by the NFL” and an even smaller fraction of what New Orleans officials predict. A later Baade and Matheson study found that the economic impact of a Super Bowl is “on average one-quarter or less the magnitude of the most recent NFL estimates.”
Similarly, a 1999 paper from professor Philip Porter found that the Super Bowl had virtually no effect on a city’s economy. Research on other events New Orleans has hosted, including the men’s Final Four, is similar. When Baade and Matheson studied Final Fours, they found that the events tend “not to translate into any measurable benefits to the host cities.”
There are multiple reasons the estimates are often overstated. Impact estimates usually take into account how much money will be spent in the city during an event like the Super Bowl without examining how much potential spending will be lost because people don’t visit or leave the city to avoid the crowd — that is, the impact studies account for gross spending, but not net spending. And the estimates rarely include the additional cost of putting on the event, further distorting the disparity between gross and net spending figures.
Frankly, I find the Williams College study undergirding Travis’ argument far more persuasive than the happy face one put out here by ASU that is cited above. Still, even if the net impact is “only” 150-200 million dollars, that is a good thing for a city’s economy. And I don’t know what people going to the Super Bowl in cold weather place like New Jersey/New York are going to come away Continue reading
There was an interesting, albeit little noticed, order issued about ten days ago in the somewhat below the radar case of Royer v. Federal Bureau of Prisons. Royer is a federal inmate who has served about half of his 20 year sentence who in 2010 started bringing a mandamus action complaining that he was improperly classified as a “terrorist inmate” causing him to be wrongfully placed in Communication Management Unit (CMU) detention. The case has meandered along ever since.
Frankly, beyond that, the root case facts are not important to the January 15, 2014 Memorandum and Order issued by Judge Royce Lamberth in the case. Instead, Lamberth focused, like a white hot laser, on misconduct, obstreperousness and sheer incompetence on the part of the United States Department of Justice (DOJ) who represents the Defendant BOP in the case.
Here are some samples straight off of Royce Lamberth’s pen:
Plaintiff’s discovery requests were served on June 19, 2013. Defendant failed to respond on July 19, 2013, as required, nor did defendant file a motion for extension of time. Defendant’s first error, therefore, was egregious—arrogating to itself when it would respond to outstanding discovery.
Defendant’s fourth error was on August 5, 2013, when it filed its responses to interrogatories and produced a few additional documents. The answers to interrogatories contained no signature under oath, with untimely objections signed by counsel. Even novices to litigation know that answers to interrogatories must be signed under oath. Any attorney who practices before this Court should know that this Court does not tolerate discovery responses being filed on a “rolling” basis
Lamberth then goes on to grant the inmate plaintiff pretty much all his discovery motion and hammers the DOJ by telling plaintiff to submit its request for sanctions in the form of award of Continue reading
The decision is in, and the California Supreme Court has made their decision to refuse to grant Stephen Glass a law license in the State of California.
We conclude that on this record he has not sustained his heavy burden of demonstrating rehabilitation and fitness for the practice of law.
Ironically, the California Bar’s initial hearing officer, the entity that actually deals with line level lawyers and their practice on a day to day basis in California, found Glass had demonstrated reform and good character so as to be fit for practice. The The State Bar Court Review Department independently reviewed the record and agreed with the initial finding of character fitness for practice. Instead, it was the more insulated elitists in the Bar Committee, and ultimately in the California Supreme Court, who thought otherwise.
Glass’s conduct as a journalist exhibited moral turpitude sustained over an extended period. As the Review Department dissent emphasized, he engaged in “fraud of staggering‟ proportions” and he “use[d] . . . his exceptional writing skills to publicly and falsely malign people and organizations for actions they did not do and faults they did not have.” As the dissent further commented, for two years he “engaged in a multi-layered, complex, and harmful course of public dishonesty.” Glass’s journalistic dishonesty was not a single lapse of judgment, which we have sometimes excused, but involved significant deceit sustained unremittingly for a period of years. (See Hall v. Committee of Bar Examiners (1979) 25 Cal.3d 730, 742 [applications may be rejected in cases of “numerous fraudulent acts” and “false statements”].) Glass’s deceit also was motivated by professional ambition, betrayed a vicious, mean spirit and a complete lack of compassion for others, along with arrogance and prejudice against various ethnic groups. In all these respects, his misconduct bore directly on his character in matters that are critical to the practice of law.
Glass’s misconduct was also reprehensible because it took place while he was pursuing a law degree and license to practice law, when the importance of honesty should have gained new meaning and significance for him.
Moreover, Glass’s lack of integrity and forthrightness continued beyond the time he was engaged in journalism. Once he was exposed, Glass‟s response was to protect himself, not to freely and fully admit and catalogue all of his fabrications. He never fully cooperated with his employers to clarify the record, failed to carefully review the editorials they published to describe the fabrications to their readership, made misrepresentations to The New Republic regarding some of his work during the period he purported to be cooperating with that magazine, and indeed some of his fabrications did not come to light until the California State Bar proceedings. He refused to speak to his editor at George magazine when the latter called to ask for help in identifying fabrications in the articles Glass wrote for that magazine.
The decision goes on to hammer Glass about as hard as could be imagined in every aspect of his prior conduct, rehabilitation and application for bar membership. The decision is every bit as venomous and scathing as the oral argument was (further discussed below).
Back in August of last year, I wrote about the attempt of failed, story inventing journalist Stephen Glass’ attempt to gain his license to practice law in the State of California. I drew a comparison between the beyond commendable success Shon Hopwood has found in gaining an exclusive Continue reading
In yet another win for equality, and equal protection, on issues involving sexual orientation and identity, the Ninth Circuit has issued an important opinion holding Batson v. Kentucky protections apply to sexual orientation issues in jury selection.
The case is Smithkline Beecham Corp, dba GSK v. Abbott Laboroatories, and the decision is here.
This case evolved out of a licensing dispute between two pharmaceutical makers of HIV medications. GSK contended Abbott violated antitrust laws, dealt in bad faith and otherwise engaged in unfair trade practices by licensing to GSK the authority to market an Abbott HIV drug in conjunction with one of its own and then increasing the price of the Abbott drug fourfold, so as to drive business to Abbott’s own combination drug.
Judge Steve Reinhardt set the table:
During jury selection, Abbott used its first peremptory strike against the only self-identified gay member of the venire. GSK challenged the strike under Batson v. Kentucky, 476 U.S. 79 (1986), arguing that it was impermissibly made on the basis of sexual orientation. The district judge denied the challenge.
This appeal’s central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial.
The fact the court unanimously found that heightened scrutiny applies is critical. Finding heightened scrutiny controlling on sexual preference issues has been the holy grail for a long time, and exactly what the Supreme Court ducked in Windsor (mostly) and Perry (completely through avoidance).
The Batson challenge was effectively uncontroverted materially by Abbot, and the court found exactly that. The far more important discussion, however, comes in the analysis of whether the violation by Abbott violated the Equal Protection Clause. This is a necessary question because, while the Supreme Court in J.E.B. v. Alabama extended Batson protections to gender, and Continue reading
Sadly, this is our penultimate weekend of football here at the Wheelhouse. Down to two games, San Francisco versus Seattle and New England versus Denver. And, really, it is fitting, as these were probably the two best teams in their respective conferences when the season started, were throughout, and are now. So, we are where we are supposed to be.
Patriots at Broncos: While the NFC Championship features two new school mobile kids on the block, the AFC features two of the classic, and classiest, traditional pocket passers in NFL history. Any discussion of best ever quarterbacks has Peyton Manning and Tom Brady in it, irrespective of who you put at the top of the list. Personally, I have Joe Montana still at the top and think some older players, to wit Otto Graham and Bart Starr, are given far too short a shrift. But Brady and Manning have earned their spot in the discussion, and this is a real treat to be able to see them face off, yet again, in such an important playoff game.
The Patriots seem to have stabilized on defense, the Broncos seem to still be reeling from the loss of Von Miller. On paper, Denver has a significantly better defense, both against the pass and the rush. But paper doesn’t count for this game, and I think it is a draw on the D side of the ball. On the offensive side, both teams have been known to rely on their quarterbacks too much. But both have recently found, and relied on, their running game. LeGarrette Blount was a monster for the Pats last week, and Knowshon Moreno ate the Pats up earlier this year. You already know about the QB’s; they are a wash. There is one area where there is a difference though. Receivers. Bill Bel and Brady have been geniuses with what they have gotten out of rooks and scrubs, but Denver has serious ballers in Welker, Eric Decker, Demaryius Thomas and Julius Thomas. That is a real edge. Then give the coaching edge to Bill Bel….and you end up with a pick em.
49ers at Seahawks: They may be newfangled, but both QB’s in the NFC Championship are superb, and, apparently, evenly matched too. But not so fast. Kaepernick has been rediscovering his groove down the stretch, and Russell Wilson has been looking a little shaky in the confidence (and performance) category. Edge to Kap. Niners also have far better receivers, with Anquan Boldin, Vernon Davis and Crabtee, than do the Squawks. Percy Harvin would have helped level that playing field, but he won’t be playing. Gore and Lynch are both studs, and thus a wash, but the QB and receivers are a huge plus for SF.
The defensive paper actually seems to favor the Niners but, again, toss the paper out the window. Seattle’s defense is bad ass, and they will have the 12th Man noise that comes with their home field. That is an edge. Coaching is a wash between Harbaugh and Carroll, but man do they completely dislike each other. The game is really probably another pick em, to slight favorite for the Niners; however, I am going to take a flyer on the Squawks. I don’t feel good about it, but there you have it.
Music is by by It’s A Beautiful Day, featuring Pattie Santos and David LaFlamme. A completely killer band out of the 60′s heyday of San Francisco. Shame they never hit it bigger and are mostly forgotten now, because they were really good. And to tie it all together, this song, White Bird, is a song about some melancholy times LaFlamme and his wife spent in Seattle. See, it all ties together for the NFC Championship Game!