The DOMA Decisions In The 9th Circuit

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I have had several people ask me off blog about the “opinions” on the Defense Of Marriage Act (DOMA) that have surfaced recently in the 9th Circuit. I may write more later; but for now I want to lay out the sequence of facts and actions and start the discussion.

The current issue really took flight last month when 9th Circuit Chief Judge Alex Kozinski entered an order dated November 19, 2009 on the matter of Karen Golinski, a staff attorney for the 9th Circuit Court of Appeals. Judicial branch employees such as Golinski are Federal employees and therefore have their benefits administered by the Office of Personnel Management (the same folks Obama and Harry Reid want to administer their poor excuse of a substitute for the Public Option). Based upon the OPM’s stated position, the contracted benefits carrier (Blue Cross/Blue Shield) refused to provide health benefits for her same sex legal spouse, Amy Cunninghis.

From Judge Kosinski’s November 19 Order:

Karen Golinski has been denied a benefit of federal employment because she married a woman rather than a man. I previously determined that violates this court’s guarantee of equal employment opportunity. To avoid a difficult constitutional problem, I harmonized the Defense of Marriage Act (DOMA), 1 USC §7; the statutes creating the benefit program at issue, the Federal Employees Health Benefits Program (FEHBP), 5 USC §8901 et seq.; and this court’s commitment to equal employment opportunity.

I then entered [an] order
…
No “party or individual aggrieved” by my decision appealed it.

The Administrative Office of the United States Courts (AO) complied with my order and submitted Ms. Golinski’s form 2089 to the Blue Cross and Blue Shield Servie Benefit Plan, Ms. Golinski’s health insurance carrier. That’s as it should be; the AO is subject to the “supervision and direction” of the Judicial Conference of the United States, 28 USC §604(a), and I exercised authority delegated by the Judicial Conference when I ordered relief. After the AO submitted Ms. golinski’s form, I thought this matter had concluded.

The Executive Branch, acting through the Office of Personnel Management (OPM), thought otherwise. It directed the insurance carrier not to process Ms. Golinski’s form 2089, thwarting the relief I had ordered. (citations omitted)

That is the basic tale of Golinski and Kozinski. Since the November 19 Order the above language was taken from, the situation has become even more exacerbated by the intransigence of the Obama Administration and its OPM which, either comically or tragically depending on one’s view, is headed by John Berry who the Administration made a big show of touting as its highest ranking openly gay official.

The irony just oozes. After further refusal and contempt of his clear order, which the Administration never appealed, Read more →

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Late Night: Punkin The White House

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statedinner1125That’s punkin, not pumpkin my fellow gobblers and gobblees. Yes indeedy, the White House has been officially punked. Late breaking from the Washington Post:

A couple of aspiring reality-TV stars from Northern Virginia appear to have crashed the White House’s state dinner Tuesday night, penetrating layers of security with no invitation to mingle with the likes of Vice President Biden and White House Chief of Staff Rahm Emanuel.

Tareq and Michaele Salahi — polo-playing socialites known for a bitter family feud over a Fauquier County winery and their possible roles in the forthcoming “The Real Housewives of Washington” — were seen arriving at the White House and later posted on Facebook photos of themselves with VIPs at the elite gathering.
…
While the White House offered no official explanation, it appears to be the first time in modern history that anyone has crashed a White House state dinner. The uninvited guests were in the same room as President Obama, first lady Michelle Obama and Indian Prime Minister Manmohan Singh, although it is unknown whether they met the Obamas and the guest of honor.

Here is the best part – they had their picture taken with the one and only Ron Emanuel:

But the best was yet to come: Once inside the dinner tent, they got pictures that appeared to show them with ABC’s Robin Roberts, Bollywood composer AR Rahman, PepsiCo CEO Indra Nooyi, Obama Chief of Staff Emanuel (identified as “Ron” in the couple’s Facebook photo caption) and two with a grinning vice president. (Emphasis added)

So, that is a pretty good story; but here is an even better one of some punkin going on at the White House, courtesy of the inestimable Howie Klein.

Howie tells the story of how he arranged for Lou Reed to attend and perform for an official Clinton White House State Dinner for Vaclev Havel, President of the Czech Republic:

One of the “big” news stories yesterday was the State Dinner President Obama gave in honor of Indian Prime Minister Manmohan Singh, who, like CNN’s Sanji Gupta– a guest– is a doctor. 400 people were invited– probably 200 + 1 each, but I’m not certain– and it was in a heated tent on the lawn. I have a half-baked reason for telling the story of the state dinner I went to in September, 1998
….
I understood exactly what President Clinton wanted– and delivered. Havel and Lou Reed, a Reprise artist and a friend of mine, had such a powerful bond that Havel actually credited him with being part of the inspiration for the Velvet Revolution that freed Czechoslovakia from Soviet domination.
….
Everyone was grooving out (Henry Kissinger, Ted Stevens, Eric Holder, Kurt Vonnegut, Jane Harman, Chuck Hagel and 2 generals, John Shalikashvili and my new pal, Henry Shelton, chairman of the Joint Chiefs of Staff)– not just Lugar– and I kept wondering if anyone had any clue what the lyrics were. Clinton certainly didn’t. He got up onstage and played his sax.

Now that is some punkin the White House!

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The Politico Villagers Go Deer Hunting!

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elmer-fuddWell, this is exciting! Yesterday on Morning Joe on MSNBC, Mike Allen of Politico proudly announced that he, the managing editor at Politico, John Harris, and Politico executive editor Jim VanderHei all went on their first deer hunt Monday. And, according to Allen, they ALL bagged a large mammal from the Cervidae family.

In plain English, all three of these first time rookie deer hunters managed to take time off from chasing unnamed sources, get dressed, get out of town, track their prey, shoot and kill a real live deer. These are clearly some awesome American Sportsmen!

This would also mean they are such studs that they tracked and finalized the kill on each of the three deer, field cleaned their prey and transported the large carcasses out of the wilds, back to their vehicles, loaded and secured the bodies and drove out of the hunting fields. And they were all back safe and sound at home in time to get a night’s sleep and be in a studio at the crack of dawn to do Morning Joe! Astounding!

All it took was a few hours apparently. These guys must be damn good, because when I was younger, I used to deer hunt with three older men that were knock down dead eye pros, we went for 3-4 days at a time to open the season, and never had the kind of success that beginners Allen, VanderHei and Harris did in seemingly just a few short hours. My coonskin hat is off to all three of them; this is a truly impressive feat.

I am kind of shocked they didn’t run into Dick Cheney, kind of sounds like his type of “hunting” expedition. But, as Allen’s face did not have buckshot oozing from it, I guess not they did not encounter Deadeye Dick. I tried emailing and phoning the three intrepid hunters for more details of their safari, but they failed to return contact.

Fortunately, in an Emptywheel exclusive, we were able to obtain video of the grand hunt!

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Mika Brzezinski and her 7% Husband

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In the guise of pitching her book on career and family yesterday, Mika Brzezinski had this to say:

Finding a job is hard enough, but have you ever considered the odds and the challenges of finding a good man?

Bad news, girls. The odds are definitely better on getting the right job than getting a good partner for life. Someone who will grow with you. Someone to develop memories with. Someone who was there in the beginning. Someone who will be there at the end.

Don’t push away that chance if you’re one of the lucky ones who find that partner. And remember, you can always change a job. I hear it’s much harder to switch out a husband.

Now maybe this will come as a surprise to someone born into fame and connections like Mika, but it’s not actually all that easy to find a job. As CNN pointed out the other day, statistically it’s actually harder to find a job right now than it is to get into Harvard (or Mika’s alma mater of Williams).

Since the beginning of the recession in December 2007, job openings declined from 4.4 million to 2.4 million and the number of officially unemployed persons grew from 7.5 million to 15.7 million, according to the U.S. Bureau of Labor Statistics.

If the 15.7 million officially unemployed workers were to apply for those 2.4 million jobs, the chance of any one of them finding a job are about 15 percent, or roughly the same odds as being accepted to the University of Pennsylvania.

Read more →

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Maybe We Can Have Prayer Treatments Instead of Reproductive Care?

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There are many reasons I’d love to be a fly on the wall in the conference on health care reform.

But chief among those is to see how (whether) they’re going to justify paying for “health care” for the Christian Scientists while denying reproductive care for millions of women.

Backed by some of the most powerful members of the Senate, a little-noticed provision in the healthcare overhaul bill would require insurers to consider covering Christian Science prayer treatments as medical expenses.

The provision was inserted by Sen. Orrin G. Hatch (R-Utah) with the support of Democratic Sens. John F. Kerry and the late Edward M. Kennedy, both of Massachusetts, home to the headquarters of the Church of Christ, Scientist.

The measure would put Christian Science prayer treatments — which substitute for or supplement medical treatments — on the same footing as clinical medicine. While not mentioning the church by name, it would prohibit discrimination against “religious and spiritual healthcare.”

Granted, both the Stupak Amendment and payment for Christian Scientist prayer may be removed in conference.

But I’d really like to see how Orrin Hatch, say, tried to explain skewing healthcare in this country only to meet the demands of religion, no matter how wacky, even while denying the care choices of millions of religious and non-religious women. And, frankly, I’d love to see what the courts think about it. Because once you’re making laws to protect the Christian Scientists all the while crafting your bill to meet the demands of the Catholic Bishops, you’ve got a very interesting Church/State separation question on hand.

Update: Church of Christ, Scientist  v. scientology correction per joejoejoe.

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DC’s Newest Reality Show

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Picture 138And speaking of C Street, it looks like the moralizing hypocrites at C Street are shopping for a new roomie.

Sen. John Ensign has moved out of the C Street house, the Christian home he shared with other elected officials on Capitol Hill that came under scrutiny for its residents’ beliefs and practices and their role in trying to end the Nevada Republican’s affair with a campaign staff member.The red brick town house emerged this summer as the subject of political intrigue — not only as a pivotal location in Ensign’s affair with Cynthia Hampton, but also that of South Carolina Republican Gov. Mark Sanford, who sought guidance there as he wrestled with his own affair.

As fallout from Ensign’s affair continues with a preliminary Senate Ethics Committee investigation and talk of a possible criminal inquiry by the Justice Department, Ensign decided to move out, not wanting to draw further attention to his longtime home.

There’s only one way to replace Ensign. To invite six avowed Christian Freshman Congressmen to participate in a reality show–a test, week by week, of who can be a bigger moral hypocrite. Each week, we’ll vote off one participant (who, thereafter, will have to pay market rates for a place in DC).

So I’m looking for two kinds of input. First, candidates to enter the reality show. You might start with this list.

And then we need a catchy name, so we can pitch the show to Bravo. My suggestion (which sucks–but then I’m busy watching football) is Praying for the Pay.

Enter your candidates–and name suggestions–in comments.

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Bart Stupak’s C-Street Sepsis

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Picture 138As you read Bart Stupak boasting of taking reproductive choice away from women, remember that he’s not just an otherwise good Democrat (he’s not, in fact, a Blue Dog) who consistently lets the agenda of the Catholic Church override the well-being of his constituents, he’s also one of C-Street’s top Democratic members.  This man, crowing over his legislative success is speaking as a representative of a group that preaches moral purity for others, but excuses itself from such moral guidelines with a back-slapping prayer lunch with the buddies. And then turns around and uses that moralizing to accrue political power.

HuffPost asked Rep. Bart Stupak (D-Mich.), the lead Blue Dog negotiator, why he succeeded and the progressives failed.

“Because I didn’t threat[en]. These are the facts,” he said.

But you did threaten, a reporter pointed out.

No, Stupak said, it wasn’t a threat. It was a promise. “No, they know I’ll vote against the rule,” he said.

Stupak said the Blue Dogs have gradually been sending a message to leadership and that much of it goes back to a previous vote involving an appropriations bill that Blue Dogs wanted to include pro-life language.

In July, the House considered a Financial Services Appropriations bill that would allow publicly-funded abortions in the District of Columbia. Stupak and allies were not allowed an amendment, so they sought to “take down the rule” — in other words, round up enough votes to deny he bill a chance to get voted on on the floor. When time expired, the pro-lifers had prevailed. But Pelosi held the vote open for extra time and persuaded four members to switch their votes.

They didn’t win in the end, Stupak said, but they accomplished their goal.

“We wanted to send a message,” he said. “We went back and I said, ‘See, I can take down your rule.'”

He has held his fire since then, saving his strength for the health care bill.

“Now, I have not threatened that every time that we went to Rules Committee and we didn’t always get our pro-life amendments, I did not try to take down any rules. You have to pick your fights at the right time. You can’t be crying wolf all the time because you lose your wolfiness. You lose your credibility,” he said. “So I’m not going to lose my credibility. So you use it at certain times when it’s appropriate.”

Viewed through the lens of Stupak’s C Street membership, this victory lap (and all the others he has been doing) comes off as what it is: a naked grab for power through hypocritical moralizing.

Too bad that formula works so well for so many in Washington.

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Trashed: Formula One No Longer Made In Japan

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As you all might know, we here at Emptywheel are car people. And one annoying thread ran common as a persistent undercurrent through all of our auto and auto bailout coverage over the last year, and that was how pitiful and incompetent the American marques were, how much they deserved their fate and how awesome the Japanese brands, especially Toyota and Honda, were in comparison. This was incredibly disturbing because, as rudimentary as rolling iron seems on the surface, the automotive industry is incredibly complex and vertically integrated; it simply is not amenable to to simplisms and truisms that were bandied about in those tumultuous days.

Sadly, it is a meme that persists even today in spite of the fact that all manufacturers, very much including those in Japan, are sucking air and taking on water. And, no, their cars are not that much better either, they have quality and safety problems too.

For all of its ballyhooed efficiency, quality control and supposed relative superiority, the Japanese auto industry always was built on the shoulders and technology of the American manufacturers; they wanted the sales sector of the Americans and the aura of the Europeans. Since the Japanese marques first started their meteoric rise in prominence in the 70s, the holy grail for them was to compete and win on the highest stage in the world. Formula One. But the wake of the global financial meltdown has trashed their fortunes, and their goals, every bit as hard as it pounded the American car business. The pursuit of the holy grail is over, first for Honda last December, and now for Toyota:

Toyota announced Wednesday that it would give up its prized Formula One racing team in an effort to slash costs, refocus the company on green cars and turn a profit amid continued weakness in the auto sector.

Toyota, the world’s biggest automaker, joins a growing exodus of Japanese auto companies from racing, highlighting the woes facing the country’s once cash-rich manufacturers. Honda pulled out of Formula One racing in December, while the tire-maker Bridgestone said this week that it would not renew its exclusive deal to supply tires to the series when its contract expires in 2010.

Subaru and Suzuki pulled out of the World Rally Championship before the season, citing concerns about the global crisis, while Kawasaki is quitting MotoGP, the top motorcycle competition.

“I hope you will understand that based on the current business environment we have no choice but to make this very painful decision,” Akio Toyoda, the Toyota president, said at a news conference in Tokyo on Wednesday. “To all fans, I apologize from the bottom of my heart.”

Akido Toyoda literally cried as he made the announcement. Make no mistake, there was cause; he, Toyota and Japan had all lost face with the withdrawal from Formula One. The Japanese do not take Read more →

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Mark Sanford Goes Galt

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Clearly Jon Meacham and his deputy editors at Newsweek could use a refresher course in compelling journalism from their sister ship test proctors at the Stanley Kaplan Corporation. Newsweek, you see, has just seen fit to publish a lengthy interpretation of Ayn Rand by none other that Appalachian Trail aficionado Mark Sanford.

The Fountainhead is a stunning evocation of the individual and what he can achieve when unhindered by government or society. Howard Roark is an architect who cares nothing about the world’s approval; his only concerns are his integrity and the perfection of his designs. What strikes me as still relevant is its central insight—that it isn’t “collective action” that makes this nation prosperous and secure; it’s the initiative and creativity of the individual. The novel’s “second-handers,” as Rand called them—the opportunistic Peter Keating, who appropriates Roark’s architectural talent for his own purposes, and Ellsworth Toohey, the journalist who doesn’t know what to write until he knows what people want to hear—symbolize a mindset that’s sadly familiar today.

Yeah, because the guy using state money to fly himself around the globe to meet his Latin lover, while his wife and children are back in the government paid for Governor’s mansion, ought to be talking about second hand leeches.

When the economy took a nosedive a year ago—a series of events that arguably began when the government-sponsored corporations Fannie Mae and Freddie Mac went broke—many Americans, myself included, watched in disbelief as members of Congress placed blame on everyone and everything but government. This wasn’t new in 2008. It’s an act we’ve seen over and over since the beginning of the New Deal in 1933. For that reason, I think, those passages in Atlas Shrugged foreshadow what might happen to our country if there is no change in direction. As Rand shows in her book, when the government is deprived of the free market’s best minds, it staggers toward collapse.

Uh huh, how convenient. Sanford pegs Fannie and Freddie as the ultimate culprits without noting that, while government sponsored, they are privately run enterprises. Nor noting that the reason the GSEs failed is from the complete hash of the financial markets made by the anti-regulatory, free wheeling, Randian geniuses populating Wall Street and the “financial products” markets that Sanford so adores.

Then there is this: Read more →

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Little Legal Recourse For Artists’ Rage Against Musical Torture

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One of the obvious questions from the announcement of the musicians Rage Against Musical Torture, and one that several people have been asking, is what avenues of legal recourse do the musicians have? It turns out remarkably few, if any.

A look at the recent case of Jackson Browne v. John McCain demonstrates why. Here is a link to the complaint in Browne v. McCain; as you can tell, Plaintiff Browne pled four causes of action for the wrongful use of his music. The four counts are copyright infringement, vicarious copyright infringement, violation of the Lanham Act and violation of state law (California) right to publicity. (You can see the court’s rulings upholding the viability of these counts at the links provided here).

The lead count of copyright infringement is based upon 17 USC 501 et seq. The specific triggering conduct is delineated in 17 USC 106-122. Unlike in Browne, there really is no provision of the applicable law that comes into play. In Browne, there was an appropriation for use in a campaign commercial, that was broadcast on television and the internet, and the conduct happened in the United States; none of that is the case, unfortunately, for the musicians here. There was no “commercial use”, there was no “secondary broadcast”, and the putative conduct did not occur within the United States.

The key here is the nature of the use. As horrid as the conduct of using the artists’ music for torture is, there is no evidence that the governmental actors, whether soldiers, CIA or contractors, obtained the music illegally. Furthermore, there is no evidence that they used the music for a “commercial purpose”. It was not broadcast, nor was it played in a public setting; there is legally little to nothing to distinguish what was done from a person playing his boom box or stereo too loud in his apartment building. In short, there does not seem to be a “copyright infringement”. The same rationale explains why there is no apparent RIAA violation. Also, since there was no cognizable copyright violation, there was no “vicarious copyright infringement” as was present in Browne.

The next common count to proceed in these situations is via the “Lanham Act“. Here, again, the facts simply do not truly reach the scope of the claim. There is no legal basis for asserting that the restricted use made of the artists’ music would create confusion or imply that the artists approved of the torture; and, again, the conduct was not done in a public setting or Read more →

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