March 28, 2024 / by 

 

What Glenn Greenwald Said On American Terrorism Cowardice

Just go read it. Because every word Glenn Greenwald wrote in his post today, entitled Nostalgia for Bush/Cheney Radicalism, is the gospel truth. It is rare that you will see a post here just pointing you somewhere else because the other source says it all. This is one of those times. Here is a taste:

How much clearer evidence can there be of how warped and extremist we’ve become on these matters? The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe. Merely advocating what Reagan explicitly adopted as his policy — “to use democracy’s most potent tool, the rule of law against” Terrorists — is now the exclusive province of civil liberties extremists. In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike. And the mere notion that we should prosecute torturers (as Reagan bound the U.S. to do) — or even hold them accountable in ways short of criminal proceedings — is now the hallmark of a Far Leftist Purist. That’s how far we’ve fallen, how extremist our political consensus has become.

Now go read the rest and weep for your country.


Supreme Court Unleashes Corporate Campaign Cash In Citizen's United Decision

images5thumbnail1.thumbnail11The stunning and decisive loss by Martha Coakley to Scott Brown in the Massachusetts Senate special election has already caused a tsunami of fear among Democrats, and corresponding joy among Republicans, heading toward next fall’s midterm elections. If you think this is cause for concern for Democrats looking forward to the 2010 midterm elections, picture the scene if the Republican party were also able to benefit from removal of restrictions on corporate and financial industry cash infused into their electoral coffers heading into the midterms and 2012 Presidential election.

As I wrote back last August, the Supreme Court took very unusual steps in a case by the name of Citizens United v. FEC to craft a case – originally argued on separate grounds – into a vehicle to make a Supreme Court declaration on the constitutionality of campaign finance restrictions and regulations. As Adam Cohen of the New York Times put it:

If the ban is struck down, corporations may soon be writing large checks to the same elected officials whom they are asking to give them bailouts or to remove health-and-safety regulations from their factories or to insert customized loopholes into the tax code.

Citizens United v. FEC was originally argued on March 24, 2009; but subsequently noticed for re-argument on the new grounds involving the opening of corporate campaign contributions on September 9, 2009. The general consensus among the cognoscenti is that the Justices were leaning heavily toward blowing up the regulations and restrictions on corporate campaign contributions. For a complete blow by blow procedural and substantive history leading up to the decision, see Lyle Denniston’s SCOTUSWiki on this case.

Well, the decision in Citizens United v. Federal Elections Commission is in and attached hereto. As you can see, it is a 5-4 split decision with Justice Kennedy writing the majority opinion. The decision below is reversed in part and affirmed in part, and the seminal case of Austin v, Michigan is hereby overruled as is that part of McConnell v. FEC which upheld the resitrictions on independent corporate expenditures. In dissent, and/or partial dissent is Justice Stevens, joined by Ginsburg, Sotomayor, and Breyer. Justice Thomas also filed an opinion concurring in part and dissenting in part.

Today’s decision in Citizens United v. FEC abolishes the previously settled distinction between corporate and individual expenditures in American elections and would appear to apply to state and local elections as well as Federal ones given that the Court recognizes such a First Amendment right. This is literally an earth shattering change in the lay of the land in campaign finance, and it will have ramifications in every way imaginable for the foreseeable future.

Quoting a very interested observer, Senator Russ Feingold, he of McCain-Feingold fame, John Nichols had this to say in The Nation:

But U.S. Senator Russ Feingold, the Wisconsin Democrat who has been in the forefront of campaign-finance reform efforts for the better part of two decades, is worried.

“This would be in my view, a lawless decision from the Supreme Court,” says the senator who gave his name to the McCain-Feingold law. “Part of me says I can’t believe they’ll do it, but there’s some indication they might, and that means the whole idea of respecting the previous decisions of the Supreme Court won’t mean anything anymore.”

A lawyer who chairs the Constitution Subcommittee of the Senate Judiciary Committee, Feingold notes with regard to controls on corporate campaigning: “These things were argued in 1907, when they passed the ban on corporate treasuries. It was argued in 1947, Taft-Hartley did this. The Supreme Court has affirmed over and over again that it’s not part of free speech that corporations and unions can use their treasuries (to buy elections).”

If the court does overturn both law and precedent to advance a corporate agenda, Feingold says, “It’s just an example of activism, and legislating by a court, if they do this.”

It is, as well, dangerous for democracy.

Says Feingold: “If they overturn a hundred years of laws, it means that corporations or unions can just open their treasuries (and) just completely buy up all the television time, and drown out everyone else’s voices.”

Looks like we will be swimming in danger just like Russ Feingold feared. And when you couple the newly unleashed and unfettered corporate cash with the resurgent masters of corporate symbiosis and subservience, the Republican party, you have a recipe for the Democratic party heading into the perfect storm.


SCOTUS Scuttles Prop 8 Video Coverage; The History Behind The Denial

images5thumbnail1.thumbnail1As you may have heard (See here and here), the Supreme Court has entered a last minute stay to put a hold on the video feed of the seminal Prop 8 trial in the Norther District of California (NDCA) to select other Federal courthouses in the country as well as the delayed release of video clips of the proceedings via YouTube.

This is the full text of the order issued by the Supremes:

Upon consideration of the application for stay presented to Justice Kennedy and by him referred to the Court, it is ordered that the order of the United States District Court for the Northern District of California, case No. 3:09-cv-02292, permitting real-time streaming is stayed except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held. Any additional order permitting broadcast of the proceedings is also stayed pending further order of this Court. To permit further consideration in this Court, this order will remain in effect until Wednesday, January 13, 2010, at 4 p.m. eastern time.

Justice Breyer, dissenting.

I agree with the Court that further consideration is warranted, and I am pleased that the stay is time limited. However, I would undertake that consideration without a temporary stay in place. This stay prohibits the transmission of proceedings to other federal courthouses. In my view, the Court’s standard for granting a stay is not met. See Conkright v. Frommert, 556 U. S. ___, ___ (2009) (slip op., at 1–2) (Ginsburg, J., in chambers). In particular, the papers filed, in my view, do not show a likelihood of “irreparable harm.” With respect, I dissent.

This is, to say the least, a disappointing ruling. It had been my guess that Anthony Kennedy would field the issue, which went directly to him as the hot judge for emergency matters from the 9th Circuit, and see it as a matter within the discretion of the 9 Circuit and let them make the call, which they had done in favor of video dissemination. For those not aware, this idea of video from the courtroom was not germinated from the Prop 8 trial, even though that has been the focal point. Instead, the pilot program was the brainchild of the 9th circuit Judicial Conference, as described in this LA Times article from late last year:

Federal courts in California and eight other Western states will allow video camera coverage of civil proceedings in an experiment aimed at increasing public understanding of the work of the courts, the chief judge of the U.S. 9th Circuit Court of Appeals said Thursday.

The decision by the court’s judicial council, headed by Chief Judge Alex Kozinski, is in response to recommendations made to the court two years ago and ends a 1996 ban on the taking of photographs or transmitting of radio or video broadcasts.

“We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law,” Kozinski said. “The experiment is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding.”

The first proceedings to be taped or photographed will be chosen by the chief judge of each of the 15 districts in the 9th Circuit region in consultation with Kozinski, the court announcement said, noting that only non-jury civil cases would be subject to the new rules.

The Prop 8 trial became the hot button topic on the pilot program simply because the Chief Judge of the NDCA is Vaughn Walker and he chose the non-jury Prop 8 trial as the first proceeding for his district. It is hard to imagine a more appropriate case to televise and allow access to than one involving fundamental human and constitutional rights, as well as one that is in the forefront of the socio-political/legal conversation in the United States.

It is similarly hard to imagine anyone would object to that trial being disseminated by video to a wider audience unless, of course, you are the Proposition 8 supporters and do not want the world to see the ugliness of both your soft and hard bigotry. And so that invasive and discriminatory group did just that and filed a Petition for Stay to the United States Supreme Court to halt the video Judge Walker had ordered. There were three response briefs submitted, by the plaintiffs in the lower court (Perry) challenging the constitutionality of Prop 8, a Supplement by Perry, and one filed by an interested Media Coalition.

I could spend a couple of thousand words explaining my thoughts on why the order permitting the restricted video coverage which had been entered by Judge Walker, and upheld by the 9th Circuit, is appropriate and why the Supreme Court erred in setting it aside, even if temporarily, but the words and argument of the attorney for the Media Coalition, Tom Burke, really say it all better than I could. Take a look at it, it is not long and is excellent.

It will be very interesting to see what the Supremes have to say at the end of the day Wednesday once they have had a chance to engage in “further consideration”. I think there is a chance for bifurcation in their treatment between the live video feed to other selected Federal courtrooms and the dissemination of “YouTube” clips to the internet. We shall see. In the meantime, I would like to focus for a minute on the almost certain basis for the reticence of the Supreme Court, and it is their own longstanding, and somewhat self centered, interest.

The issue of video cameras in Federal courtrooms has, at root, historically been framed in terms of the First Amendment right to free press and the transparency it portends versus the Sixth Amendment right to a fair trial. As the top court, the US supreme Court has consistently ruled against permitting video cameras in courtrooms, generally citing the Sixth Amendment. Except where they haven’t; for instance in state court cases that could not set a precedent which could eventually lead to cameras in – gasp – the US Supreme Court.

In the 1981 case of Chandler v. Florida, the Supreme Court stated (from the syllabus):

The Constitution does not prohibit a state from experimenting with a program such as is authorized by Florida’s Canon 3A(7).

This Court has no supervisory jurisdiction over state courts, and, in reviewing a state court judgment, is confined to evaluating it in relation to the Federal Constitution.

Estes v. Texas, supra, did not announce a constitutional rule that all photographic, radio, and television coverage of criminal trials is inherently a denial of due process. It does not stand as an absolute ban on state experimentation with an evolving technology, which, in terms of modes of mas communication, was in its relative infancy in 1964 when Estes was decided, and is, even now, in a state of continuing change.

An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, conduct of the broadcasting process or prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter. The appropriate safeguard against juror prejudice is the defendant’s right to demonstrate that the media’s coverage of his case — be it printed or broadcast compromised the ability of the particular jury that heard the case to adjudicate fairly.

Whatever may be the “mischievous potentialities [of broadcast coverage] for intruding upon the detached atmosphere which should always surround the judicial process,” Estes v. Texas, supra at 381 U. S. 587, at present no one has presented empirical data sufficient to establish that the mere presence of the broadcast media in the courtroom inherently has an adverse effect on that process under all circumstances. Here, appellants have offered nothing to demonstrate that their trial was subtly tainted by broadcast coverage — let alone that all broadcast trials would be so tainted. (page citations omitted)

See? Broadcast is not inherently bad, and it certainly does not violate the Constitution, by the Supreme Court’s own words. But they sure sing a different tune when the thought of video coverage gets closer to their own hallowed halls; thus they have consistently fought off allowing video in Federal courts, because once it permeates lower Federal courts, it will get to the Supreme Court. And the cloistered Supreme Justices simply do not want the scrutiny that such transparency would yield to their process.

Many attempts have been made over the years to get video coverage of Supreme Court sessions permitted, the most recent championed in the US Senate in 2007 by Arlen Specter and, believe it or not, John Cornyn (who had experience in the Texas Supreme Court and found the camera coverage quite acceptable). But none other than Justice Anthony Kennedy and Justice Clarene Thomas schlepped down to the Senate to implore Congress not to pass legislation sanctioning camera coverage of the Supreme Court. Justice Kennedy testified on March 8, 2007:

But I don’t think it’s in the best interest of our institution…Our dynamic works. The discussions that the justices have with the attorneys during oral arguments is a splendid dynamic. If you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a soundbite. Please don’t introduce that insidious dynamic into what is now a collegial court. Our court works…We teach, by having no cameras, that we are different. We are judged by what we write. WE are judged over a much longer term. We’re not judged by what we say. But, all in all, I think it would destroy a dynamic that is now really quite a splendid one and I don’t think we should take that chance.

Fine for thee, but not for me has long been the Supreme Court view. Justice Souter famously declared in Congressional testimony back in 1996 when an earlier move to televise Supreme Court proceedings was raised:

The day you see a camera come into our courtroom it’s going to roll over my dead body.

For a complete breakdown on the respective views of the Supreme Court bench on televised proceedings, see this summary page from CSPAN on Cameras In The Court. The reticence to permit cameras in the Court is palpable, even though several couch their views to give the appearance of being open minded. The salient point is that every time Congress renews the subject, emissary Justices are immediately dispatched to give committee testimony against permitting video coverage; there are never corresponding Justices sent in favor of camera coverage. To be fair, Breyer and Ginsberg expressed no opposition during their confirmation hearings; but never on the record at regular hearings.

The bottom line for the Prop 8 case is that once Anthony Kennedy decided to take it upon himself and the Supreme Court to remove the decision power from the applicable circuit and trial court, there was not going to be ready approval for Judge Walker’s plan under the 9th Circuit pilot program. If history is any guide, the decision come Wednesday will be consistent with the long history by the Supremes of protecting their turf from the transparency eyes of the video courtroom by forbidding encroachment even in lower courts. But it is a new day, maybe the Justices will lend a new vision and openness. Here’s hoping.


The New Robber Barons

image002Previously, Marcy Wheeler noted the unsavory blending of the private interests of health insurance companies with the power and hand of the US government:

It’s one thing to require a citizen to pay taxes–to pay into the commons. It’s another thing to require taxpayers to pay a private corporation, and to have up to 25% of that go to paying for luxuries like private jets and gyms for the company CEOs.

It’s the same kind of deal peasants made under feudalism: some proportion of their labor in exchange for protection (in this case, from bankruptcy from health problems, though the bill doesn’t actually require the private corporations to deliver that much protection).In this case, the federal government becomes an appendage to do collections for the corporations.

The reason this matters, though, is the power it gives the health care corporations. We can’t ditch Halliburton or Blackwater because they have become the sole primary contractor providing precisely the services they do. And so, like it or not, we’re dependent on them. And if we were to try to exercise oversight over them, we’d ultimately face the reality that we have no leverage over them, so we’d have to accept whatever they chose to provide. This bill gives the health care industry the leverage we’ve already given Halliburton and Blackwater.

Marcy termed this being “On The Road To Neo-feudalism” and then followed up with a subsequent post noting how much the concept was applicable to so much of the American life and economy, especially through the security/military/industial complex so intertwined with the US government.

Marcy Wheeler is not the only one recently noting the striking rise in power of corporate interests via the forceful hand of US governmental decree (usually at the direct behest of the corporate interests). Glenn Greenwald, expanding on previous work by Ed Kilgore, penned a dynamic description of the dirty little secret (only it is not little by any means) afoot in modern American socio-political existence:

But the most significant underlying division identified by Kilgore is the divergent views over the rapidly growing corporatism that defines our political system.

Kilgore doesn’t call it “corporatism” — the virtually complete dominance of government by large corporations, even a merger between the two — but that’s what he’s talking about. He puts it in slightly more palatable terms:

To put it simply, and perhaps over-simply, on a variety of fronts (most notably financial restructuring and health care reform, but arguably on climate change as well), the Obama administration has chosen the strategy of deploying regulated and subsidized private sector entities to achieve progressive policy results. This approach was a hallmark of the so-called Clintonian, “New Democrat” movement, and the broader international movement sometimes referred to as “the Third Way,” which often defended the use of private means for public ends.

As I’ve written for quite some time, I’ve honestly never understood how anyone could think that Obama was going to bring about some sort of “new” political approach or governing method when, as Kilgore notes, what he practices — politically and substantively — is the Third Way, DLC, triangulating corporatism of the Clinton era, just re-packaged with some sleeker and more updated marketing. At its core, it seeks to use government power not to regulate, but to benefit and even merge with, large corporate interests, both for political power (those corporate interests, in return, then fund the Party and its campaigns) and for policy ends. It’s devoted to empowering large corporations, letting them always get what they want from government, and extracting, at best, some very modest concessions in return. This is the same point Taibbi made about the Democratic Party in the context of economic policy:

The significance of all of these appointments isn’t that the Wall Street types are now in a position to provide direct favors to their former employers. It’s that, with one or two exceptions, they collectively offer a microcosm of what the Democratic Party has come to stand for in the 21st century. Virtually all of the Rubinites brought in to manage the economy under Obama share the same fundamental political philosophy carefully articulated for years by the Hamilton Project: Expand the safety net to protect the poor, but let Wall Street do whatever it wants.

One finds this in far more than just economic policy, and it’s about more than just letting corporations do what they want. It’s about affirmatively harnessing government power in order to benefit and strengthen those corporate interests and even merging government and the private sector.

Ms. Wheeler and Mr. Greenwald are correct, and the phenomenon is not just limited to the healthcare and military/industrial complex either; it is even more alarming in the ever more dominant and pervasive financial sector, home of the “too big to fail”. The phrase itself should terrify citizens, yet the country seems blithely oblivious to the implications. If there was even a vein of common sense among the people and leadership of this country, there would be immediate realization that an entity too big to fail is so big that it controls the government as much as the other way around. But the people are asleep, distracted by their own despair and desensitized over the years. The leadership, as both Wheeler and Greenwald describe have become symbiotic with the cause and, thus, are the part of problem not a source of solution.

Marcy Wheeler describes the concentration of power and wealth in corporations married to the hand of government as neo-feudalism; Glenn Greenwald and Kilgore posit it as corporatism. Both are worthy and descriptive terms, but the real ill goes a bit deeper if you also consider the accompanying rise in income inequality and transfer of wealth to the privileged and powerful few individuals that has paralleled what Marcy and Glenn describe. When you put it all together, the result is a situation that eerily duplicates the era of the robber barons existing in the United States 100 years ago.

The New Robber Barons

Robber Barons as a descriptor for the modern overlords came to me during a conversation with several colleagues a week or two ago on how to term the healthcare companies and their owners and executives. In writing this article, however, I have found I am far from the first person to realize how the old is new again in this regard to the rapacious class. Over a decade ago, Brad DeLong hit on the same precise thought, and he hit it hard and big:

“Robber Barons”: that was what U.S. political and economic commentator Matthew Josephson (1934) called the economic princes of his own day. Today we call them “billionaires.” Our capitalist economy–any capitalist economy–throws up such enormous concentrations of wealth: those lucky enough to be in the right place at the right time, driven and smart enough to see particular economic opportunities and seize them, foresighted enough to have gathered a large share of the equity of a highly-profitable enterprise into their hands, and well-connected enough to fend off political attempts to curb their wealth (or well-connected enough to make political favors the foundation of their wealth).

Matthew Josephson called them “Robber Barons”. He wanted readers to think back to their European history classes, back to thugs with spears on horses who did nothing save fight each other and loot merchant caravans that passed under the walls of their castles. He judged that their wealth was in no sense of their own creation, but was like a tax levied upon the productive workers and craftsmen of the American economy. Many others agreed: President Theodore Roosevelt–the Republican Roosevelt, president in the first decade of this century–spoke of the “malefactors of great wealth” and embraced a public, political role for the government in “anti-trust”: controlling, curbing, and breaking up large private concentrations of economic power.

And whatever the causes, the period since the mid-1970s has seen wealth concentration in the United States increase more rapidly than ever before–even during the heyday of industrialization in the last decades of the nineteenth century. Aggregate measures of wealth concentration today are greater than at any time since the election of Franklin D. Roosevelt in the Great Depression, and are within striking distance of the peak in wealth concentration reached during the Gilded Age (see Wolff, 1994).
…..
It is striking how closely numbers of “billionaire” match shifts in aggregate wealth inequality: when the frequency of billionaires in the labor force is high, wealth concentration is high. A simple linear regression predicts that the frequency of billionaires would drop to zero should the share of wealth held by the top one percent drop to twenty percent or so–and, indeed, we find no billionaires back when wealth concentration was so low.
…..
These causes of immense wealth have nothing to do with the determinants of the relative supplies of skilled and unskilled workers, or with the technological requirements of production. It makes me think that the overall level of wealth concentration is much more a “political” and a “cultural” phenomenon than an “economic” one: that we through our political systems and our attitudes have much more to do with the concentration of wealth than does the dance of factor supplies and technology-driven factor demands.

DeLong’s piece is a comprehensive thesis that describes both the history of the earlier American robber barons and modern day versions, at least as of the time he penned his work in 1997-98. Brad noted disturbing trends at the time, but did not reach hard conclusions as to the overall effect of the phenomenon on the health of American society.

So if there is a lesson, it is roughly as follows: Politics can put curbs on the accumulation of extraordinary amounts of wealth. And there is a very strong sense in which an unequal society is an ugly society. I like the distribution of wealth in the United States as it stood in 1975 much more than I like the relative contribution of wealth today. But would breaking up Microsoft five years ago have increased the pace of technological development in software? Probably not. And diminishing subsidies for railroad construction would not have given the United States a nation-spanning railroad network more quickly.

So there are still a lot of questions and few answers. At what level does corruption become intolerable and undermine the legitimacy of democracy? How large are the entrepreneurial benefits from the finance-industrial development nexus through which the truly astonishing fortunes are developed? To what extent are the Jay Goulds and Leland Stanfords embarrassing but tolerable side-effects of successful and broad economic development?

DeLong knew what the issues were, but did not have firm conclusions and answers as to the potential detriment or benefit of such unequal wealth distribution. However, the decade plus that has elapsed since Brad wrote his version of the robber barons, and especially the last two, has put a far different patina on the situation. It is not just the difference between the rich man and poor man, it is the vanishing middle class coupled with the ever grosser arrogance, recklessness and impunity which makes the New Robber Barons such a dangerous and destructive force. There is no longer need to describe what the downside of the insanity could be; we know, we are living it as we speak and have been over the past two years.

The question is where we go from here with respect to the New Robber Baron overlords. Just mosey along status quo as the Obama Administration appears to envision, not looking back with anger, accountability and real change; or do we plow the harder, but ultimately more fertile ground of curbing the irrational and destructive accumulation of wealth and power through Teddy Rooseveltian anti-trust programs, return of Glass-Steagall protections separation of banking and investment functions and tax and social programs to rebuild the evaporating middle class.

Healthcare is the current flashpoint, and it is rightfully a big one. There is no question but that the US needs “reform”; but there is a real question, still to be answered, whether there will be something produced which benefits the masses of citizens both now and in the future or just an illusory pile of junk that benefits the ruling classes of politicians and health industry robber barons.

As Marcy Wheeler and Glenn Greenwald have persuasively argued, however, it goes much, much deeper than merely healthcare; the battle is over the root ethos of what this country is and is going to be. The incontrovertible trend is toward an unholy blending of the robber barons with the government itself. Not just the usual influencing of government policies through lobbying and monetary control of individual politicians to seek favorable policies, but where the federal government becomes an appendage to do collections, enforcement and expansion for the corporations. The best time to rethink and reverse this trend is now, it will not get easier as the trend becomes more ingrained and pervasive with time.

As long as this post is, the surface of this topic has barely been scratched. It is my hope to peg this phenomenon with a term simple, descriptive and instantly understandable by all, and to start a discussion both in comments to this post and in subsequent posts here and by others across the spectrum. Time is wasting at an alarming rate.

(graphic courtesy of Southern Labor Archives, Georgia State University)


The DOMA Decisions In The 9th Circuit

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, Judge Kozinski entered another Order Tuesday further blistering the Administration and all but instructing Karen Golinski to sue them.

But that is not the only such matter percolating in the 9th Circuit. In a separate matter involving Brad Levenson, a member of the Federal Public Defender’s Office of Central California, an office also under the same benefits plan, a different 9th Circuit Judge, Stephen Reinhardt, has also indicated dissatisfaction with the position of the government as directed by the Obama Administration. In a decision dated November 18, 2009, just a day before Kozinski’s Order in Golinski, Reinhardt wrote:

Brad Levenson, a deputy public defender in the Office of the Federal Public Defender for the Central District of California (“FPD”), is legally married, under California law, to Tony Sears. Nevertheless, Levenson has not been permitted to enroll Sears as a family member beneficiary of his federal health, dental, and vision benefits (hereinafter “federal benefits”) because both spouses are of the same sex. In a previous order, I determined that the denial of benefits on this ground violates the Ninth Circuit’s Employment Dispute Resolution Plan for Federal Public Defenders and Staff (“EDR Plan”), which expressly prohibits discrimination on the basis of sex and sexual orientation. I also determined for similar reasons that the denial of benefits violates the United States Constitution. As a further remedy for those violations Levenson now requests an order directing the FPD to enter into separate contracts with private insurers in order to provide Sears with benefits comparable to those provided in the existing federal plans, or alternatively, a monetary award pursuant to the Back Pay Act. For the reasons set forth below I have determined that an order directing the FPD to enter into separate health insurance contracts would not be a “necessary and appropriate” remedy within the scope of the EDR Plan. A back pay award, however, would be appropriate under the circumstances. Accordingly, I grant Levenson’s alternative request for monetary award, and remand the matter to the FPD to determine the actual amount awarded.

In both of these cases, Golinski and Levenson, the “plan” they were under was contractual and stipulated the only remedy and forum available for prosecuting claims of employment discrimination, which mandated first a “counseling” which was effectively a discussion with OPM representatives, followed by mediation, followed only after unsuccessful exhaustion of the first two avenues, by the ability to petition the 9th Circuit Judicial authority. The latter allows the matter to be heard by a judge, but clearly in an administrative authority as opposed to pursuant to their Article III formal judicial authority. And therein lies the rub and why the Obama Administration feels empowered to contemptuously thumb their nose at the resultant orders.

In case there is any question what Judge Reinhardt thinks of DOMA and its effects on members of the LGBT community under the circumstances:

As I concluded in my previous order, the application of DOMA to FEHBA so as to deny Levenson’s request that his same-sex spouse receive federal benefits violates the Due Process Clause of the Fifth Amendment. In reaching that conclusion, I believe it likely that some form of heightened Constitutional scrutiny applies to Levenson’s claims.

For the uninitiated, Reinhardt finds DOMA clearly unconstitutional and, because it discriminates against protected classes, must be judged under a particularly burdensome standard, which it cannot, and does not, meet. A striking and quite correct analysis.

It is somewhat scandalous, if not outright scurrilous, that the Obama Administration, which ran hard on relief to the GLBT community and protection and equal protection of their rights, would hide behind the DOMA they once scorned to deny equal protection to Karen Golinski and Brad Levenson. But that is just how they roll.

The question now is what avenue for remedy will Golinski and Levenson pursue? That is still unclear, but it ought to be very interesting. The other thing that simply cannot be emphasized enough is how remarkable the decisions of Judge Stephen Reinhardt and Chief Judge Alex Kozinski are. They have not hidden behind illusory outs or carefully kept their powder dry. Both judges have observed unconstitutional provisions and acts, egregious positions by the Obama Administration that openly claimed otherwise to get elected, and denial of equal protection to worthy citizens, and they flat out called it for what it is.

And make no mistake, those of us who live and practice in the 9th Circuit can attest to how different a place on the ideological spectrum these two are. Stephen Reinhardt is a proud old school hard liberal appointed by Jimmy Carter; Kozinski was a young and fairly radical conservative when appointed by Ronald Reagan and openly complained that the 9th was too wild eyed liberal when he joined. Their decisions here may not have precedential value as reported Article III cases, but when these two are on the same page calling foul, as they have done on the acts of the Obama Administration against Ms. Golinski and Mr. Levenson, it is a powerful marker that something very wrong is afoot. And so it is.


Obama’s Infirm Lump Of Coal Judicial Policy

images5thumbnail1.thumbnail1Lost in the blizzard like white out of other concerns by the push by the Obama Administration and Congress to handwrap a huge present for the rapacious healthcare insurance industry, has been intelligent coverage of the breakdown of Barack Obama’s naive and feckless judicial policy and the emerging harm to the U.S. Federal Court system it portends.

Maybe that is starting to change.

At the end of last week, David Fontana at TNR penned an article entitled “Going Robe” noting the ever more glaring lack of accomplishment by the Obama Administration on judicial nominees. Since then, Scott Lemieux and Kevin Drum at Mother Jones have both followed up. All of these came on the heels of a startling editorial by the New York Times last month that received far too little play.

The facts and figures are stark and certain to be depressing to progressives and liberals who voted for Barack Obama and a Democratic majority with an eye to halting the rightward shift of both the Supreme Court and lower Federal court benches. Two months ago I wrote:

Three out of 23 [confirmations out of total nominations], with a popular President possessing a real electoral mandate and the supposed holy grail of a 60 seat caucus majority in the Senate, is a batting average that screams lame. But the real eye opener painting the full color of the context is that George W. Bush sent 95 nominees to the Senate for confirmation by this point in his first term. Whatever happened to the big push Greg Craig (he of two first names) was spearheading on this? And make no mistake, it is not as if there are not plenty of judicial seats to fill – there are currently at least 90 waiting to be filled – and it is having a deleterious impact on the ability of Federal courts across the country to function.

Time is wasting, there is no reason not to put up big blocks of nominees. Get on with it, make the Republicans vote in good faith or expose them as unprincipled obstructionists. Fight for your nominees and use the 60 seat majority. You can bet your family farm that is exactly what the Republicans would do; it is what they do when in the Presidency.

What has happened since that time? Not diddly squat with the exception that Obama has finally managed to get the centrist milquetoast David Hamilton confirmed. Despite the rejoicing, this is precious little to cheer. Which brings us back to where we stand now, and Scott Lemieux nails it perfectly:

But with respect to judicial appointments, Obama’s preemptive concessions really have been counterproductive. It’s not at all surprising that his attempts to put forward moderate appointments is not working — after all, we’re dealing with conservatives willing to claim that Cass Sunstein is a wide-eyed radical.

And, what’s worse, putting forward moderate nominees will continue the asymmetry in which Republican presidents take the ideological direction of the federal courts very seriously while Democratic presidents are willing to settle for moderates to focus on other priorities. There’s no reason to continue this. Given that Republicans will portray anyone to the left of Anthony Kennedy as a lawless Trotskyite, Obama needs to make stronger liberal appointments and accept that not everyone will get confirmed.

Exactly. The problem, however, is that is just not who Barack Obama is. Scott seems to think there may be a more progressive judicial attitude lurking within Obama. Kevin Drum not only bites off on that questionable proposition, but adds:

But it’s been nearly a year now and Republicans, if anything, are more intransigent than they were on inauguration day. How much longer does Obama give them? Another year? Two? At what point does he finally give up and decide that he’s just being played for a patsy?

At what point do progressives quit perpetuating the unsupportable dream fixation of a living, breathing principled progressive lurking beneath the slick dick political marketing gloss that is Barack Obama? Obama is not a patsy and he is most certainly no “Constitutional scholar”; if he were, he would not be letting the health and future of American Article III courts wither while he dithers. Instead, Mr. Obama is a common retail politician that is willing to say what it takes to get and stay elected; principles are seemingly merely the vehicle for attracting the support he needs at any one time.

Barack Obama will never magically make the turn and do what progressives, liberals, and the citizens of this country want and need on resetting the Federal judiciary and courts from the long term relentless march to the conservative Federalist Society right wing ideal unless we – you, me and those of a similar view – force him to. There is no magic bullet for accomplishing the goal, it will take long hard and arduous work; if you want an eye opening explanation of just what this means, read the outstanding recent article by Thereisnospoon at Daily Kos.

Make no mistake however, the stakes in judicial policy are far higher and, ultimately, more consequential than other areas of domestic policy, even healthcare; Federal judges are lifetime appointments and they are the backbone of the rule of law. And while the common District trial courts and Circuit Courts of Appeal may be capable of ambling along in a weakened state from Obama’s refusal to get serious with judicial nominations and support for confirmation fights, a reckoning is coming on the Supreme court. Obama has already appointed Sonia Sotomayor, and two more vacancies, maybe three, lurk on the immediate horizon.

Justice John Paul Stevens is done after this term, that is a given; but also Ruth Bader Ginsburg’s chair may come open as well. The problem here is that Mr. Obama, even when replacing sitting liberal justices, seems hell bent to move the overall composition of the court markedly to the right with his stated desire to appoint “empathetic moderates” whatever in the world that is in practice. If Stevens and Bader Ginsburg are replaced by a couple of mealy mouthed David Hamiltons, not only will we regret it, but so will our children; that is the gravitas of lifetime appointments. Barack Obama must not be allowed to further shift the Supreme Court to the right.


Mark Sanford Goes Galt

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:

There is one more major flaw in Rand’s thinking. She believed that man is perfectible—a view she shared with the Soviet collectivists she hated. The geniuses and industrial titans who retire to Galt’s hidden valley create a perfect society based on reason and pure individualism; and Galt himself, in the 57-page speech near the book’s end, explicitly denies the existence of original sin. The idea that man is perfectible has been disproved by 10,000 years of history. Men and women are imperfect, or “fallen,” which is why I believe there is a role for limited government in making sure that my rights end where yours begin.

Crikey. Sanford found the temerity to actually argue that Rand’s “one major flaw” is the one which would condemn self serving puerile lotharios, like himself, who abdicate even their personal responsibilities to wife, children and workcraft. Sanford also neglects to mention that Rand’s objectivism is, by definition, pretty much anti-religion. As Gore Vidal once said, Ayn Rand is an:

…odd little woman [who] is attempting to give a moral sanction to greed and self interest, and to pull it off she must at times indulge in purest Orwellian newspeak of the “freedom is slavery” sort. … it is gratuitous to advise any human being to look out for himself. You can be sure that he will. It is far more difficult to persuade him to help his neighbor to build a dam or to defend a town or to give food he has accumulated to the victims of a famine. But since we must live together, dependent upon one another for many things and services, altruism is necessary to survival. To get people to do needed things is the perennial hard task of government, not to mention of religion and philosophy. … Ayn Rand’s “philosophy” is nearly perfect in its immorality…

And so it is. Then again, this is a perfect snapshot of the intellectual and moral duplicity that lies at the heart of the C-Street mentality to which Sanford and so many other fiscal scolds in Washington adhere to.

Heck, why should I have all the fun? It is audience participation Friday! Everybody here knows Rand, Sanford and C-Street; read Sanford’s Newsweek tripe and dissect in comments!


Little Legal Recourse For Artists’ Rage Against Musical Torture

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 performance. There just is not a federal trademark infringement for false association or false endorsement.

The last count in the Browne complaint was a pendant claim for state (California) law violation of “right to publicity”. This is a state law claim and, unfortunately, the known conduct occurred outside of the territorial United States. There is no hope of making out a state common law tort under these circumstances.

There are two general concerns at play here as well, statute of limitations and subject matter jurisdiction. Under 17 USC 507, all of the copyright/fair use type of issues bear a statue of three years for civil claims and five years for criminal violations (if applicable, which they do not seem to be). The known conduct seems to be outside of the statute period by now, even if a cognizable claim were able to be made out.

As to subject matter jurisdiction, the first question is whether or not the government is capable of being sued for any of the misuse to start with. The US government cannot be sued without its consent and, somewhat surprisingly, the government, pursuant to 28 USC 1498, has so consented to suit. The bigger problem is territorial jurisdiction because the known acts occurred primarily, if not exclusively, outside of the United States. Even Guantanamo would appear to be excluded here. Although the Supreme Court, in Rasul v. Bush, permitted jurisdiction for purposes of the grand writ of habeas corpus, the decision clearly appears limited to that writ. That conclusion is supported by the historic Eisentrager decision (see the discussion here as well). The bottom line is that even were it possible to argue a valid claim exists, it seems highly unlikely a US federal court would accept jurisdiction of the claim.

What is needed for the artists to be able to protect their works, and their good name, out of this situation is an international “Doctrine Of Moral Rights” allowing them to have a justiciable interest in the moral manner in which their work is used. Indeed there is just such an international law, and it is embodied in what is known as “The Berne Convention“. Under the Article 6 of the original (read French) iteration, there is a moral rights protection for authors and artists in the “right of integrity” of their works. This gives the artist an enforceable right against “mutilation or distortion that would prejudice the author’s honor or reputation”. In French law, this right is called “droit au respect de l’oeuvre” and is mentioned in Article 6 of the French Law No. 57-298 of 11 March 1957. This has been at times, in various European courts, construed as a right of an artist to not have his work used for an immoral purpose including, arguably, torture.

Unfortunately, although the US is a signatory to the Berne Convention, it does not recognize this extended moral “right of integrity” above and beyond the copyright, trademark and fair use law discussed above, which leaves the Rage Against Torture artists clean out of luck it seems. A case that appears as close to on point as can be found is Shostakovich v. 20th Century-Fox, 80 N.Y.S.2d 575, aff’d, 87 N.Y.S.2d 430 (1949). In Shostakovich, the court said:

The wrong which is alleged here is the use of plaintiffs’ music in a moving picture whose theme is objectionable to them in that it is unsympathetic to their political ideology. The logical development of this theory leads inexcapably [sic] to the Doctrine of Moral Right. There is no charge of distortion of the compositions nor any claim that they have not been faithfully reproduced. Conceivably, under the doctrine of Moral Right the court could in a proper case, prevent the use of a composition or work, in the public domain, in such a manner as would be violative of the author’s rights. The application of the doctrine presents much difficulty however. With reference to that which is in the public domain there arises a conflict between the moral right and the well established rights of others to use such works. Clemens v. Belford Clark & Co., [14 F. 728 (1883)]. So, too, there arises the question of the norm by which the use of such work is to be tested to determine whether or not the author’s moral right as an author has been violated. Is the standard to be good taste, artistic worth, political beliefs, moral concepts or what is it to be? In the present state of our law the very existence of the right is not clear, the relative position of the rights thereunder with reference to the rights of others is not defined nor has the nature of the proper remedy been determined. Quite obviously therefore, in the absence of any clear showing of the infliction of a wilful injury or of any invasion of a moral right, this court should not consider granting the drastic relief asked on either theory. The motion is accordingly denied in all respects.

Notably, the plaintiff in Shostakovich also sued in France and was successful there. Is there any hope in foreign courts for the artists here? Probably not. Iraq and Afghanistan are not signatories to the Berne Convention. Cuba is, but it seems unlikely that Cuba’s courts could successfully be accessed and utilized for the conduct at Guantanamo, and it seems beyond unlikely the US government would honor a judgement from a foreign country under this theory, whether from Cuba or any other country.

In short, there does not appear to be any valid avenue for damage recovery or injunctive relief to the harmed artists for the wrongful appropriation of their music by the US government for use in its torture program. What the artists can do is to seek the truth via the FOIA action, a process they have started. The other thing they, and you, can do is to speak out in objection to the illegal torture and detention scheme of the United States government. If you wish to join with the artists, and the generals, in voicing your objection to torture visit the CloseGitmoNow website.


Get The Lead Out: Crime Reduction In America

I saw this via Kevin Drum about a week ago and meant to put a post up because it is both stunning and fascinating. Mark Kleiman has a book out on criminal justice and punishment by the name of When Brute Force Fails. The reviews have been fantastic, but it is the discussion of the effects of reduction in lead exposure on the crime rate that caught my eye:

Given the decrease in lead exposure among children since the 1980s and the estimated effects of lead on crime, reduced lead exposure could easily explain a very large proportion — certainly more than half — of the crime decrease of the 1994-2004 period. A careful statistical study relating local changes in lead exposure to local crime rates estimates the fraction of the crime decline due to lead reduction as greater than 90%.

Jeebus; that is pretty eye opening. Granted, there are a lot of nits that could be picked as to whether this is a direct or correlative relationship and, even if it is direct, to what extent it is so; however, it is a hell of a discussion point.

A 2007 Washington Post article described one of the studies behind Kleiman’s assertion:

The theory offered by the economist, Rick Nevin, is that lead poisoning accounts for much of the variation in violent crime in the United States. It offers a unifying new neurochemical theory for fluctuations in the crime rate, and it is based on studies linking children’s exposure to lead with violent behavior later in their lives.

What makes Nevin’s work persuasive is that he has shown an identical, decades-long association between lead poisoning and crime rates in nine countries.

“It is stunning how strong the association is,” Nevin said in an interview. “Sixty-five to ninety percent or more of the substantial variation in violent crime in all these countries was explained by lead.”

Through much of the 20th century, lead in U.S. paint and gasoline fumes poisoned toddlers as they put contaminated hands in their mouths. The consequences on crime, Nevin found, occurred when poisoning victims became adolescents. Nevin does not say that lead is the only factor behind crime, but he says it is the biggest factor.

As an added bonus, the Post article uses Nevin’s study to mock Rudy Giuliani’s constant claim that he is the man who singlehandedly drastically cut the crime rate in New York City:

Rudy Giuliani never misses an opportunity to remind people about his track record in fighting crime as mayor of New York City from 1994 to 2001.

“I began with the city that was the crime capital of America,” Giuliani, now a candidate for president, recently told Fox’s Chris Wallace. “When I left, it was the safest large city in America. I reduced homicides by 67 percent. I reduced overall crime by 57 percent.”

Although crime did fall dramatically in New York during Giuliani’s tenure, a broad range of scientific research has emerged in recent years to show that the mayor deserves only a fraction of the credit that he claims. The most compelling information has come from an economist in Fairfax who has argued in a series of little-noticed papers that the “New York miracle” was caused by local and federal efforts decades earlier to reduce lead poisoning.

Lead levels plummeted in New York in the early 1970s, driven by federal policies to eliminate lead from gasoline and local policies to reduce lead emissions from municipal incinerators. Between 1970 and 1974, the number of New York children heavily poisoned by lead fell by more than 80 percent, according to data from the New York City Department of Health.

Lead levels in New York have continued to fall. One analysis in the late 1990s found that children in New York had lower lead exposure than children in many other big U.S. cities, possibly because of a 1960 policy to replace old windows. That policy, meant to reduce deaths from falls, had an unforeseen benefit — old windows are a source of lead poisoning, said Dave Jacobs of the National Center for Healthy Housing, an advocacy group that is publicizing Nevin’s work. Nevin’s research was not funded by the group.

The later drop in violent crime was dramatic. In 1990, 31 New Yorkers out of every 100,000 were murdered. In 2004, the rate was 7 per 100,000 — lower than in most big cities. The lead theory also may explain why crime fell broadly across the United States in the 1990s, not just in New York.

The centerpiece of Nevin’s research is an analysis of crime rates and lead poisoning levels across a century. The United States has had two spikes of lead poisoning: one at the turn of the 20th century, linked to lead in household paint, and one after World War II, when the use of leaded gasoline increased sharply. Both times, the violent crime rate went up and down in concert, with the violent crime peaks coming two decades after the lead poisoning peaks.

Other evidence has accumulated in recent years that lead is a neurotoxin that causes impulsivity and aggression, but these studies have also drawn little attention. In 2001, sociologist Paul B. Stretesky and criminologist Michael Lynch showed that U.S. counties with high lead levels had four times the murder rate of counties with low lead levels, after controlling for multiple environmental and socioeconomic factors.

The entire Post article is well worth a read. It makes clear that Nevin is not a voice in the scientific wilderness in his conclusions, there is a lot of support although there has been little publicity. The lack of publicity, and lack of consideration by Congress should change. Amelioration of lead contamination and exposure is a lot cheaper to society than the deep costs of the root crime, police investigation, justice system expenses and, of course, the burgeoning American prison empire.

I really do not have any intrinsic value to add to the material cited herein, but wanted to get it out and in the discussion matrix. There are obviously health benefits that would accrue from increased attention to removal of environmental lead as well. This is a subject screaming for consideration by policy makers in Washington DC.

PostScript – For any of you that don’t know Mark Kleiman, in addition to being the author of the book this post started off with, he is also a professor at UCLA in the School of Public Affairs and runs a very nice and informative blog.


More NDCA Goodness: Judge Walker Denies Prop 8 Proponents’ Motion

As most of you know, Proposition 8 in California is the anti gay marriage provision. Supporters of the basic right to gay marriage sued the State of California after passage of Proposition 8 as a ballot initiative in last falls elections. Today were oral arguments on a motion for summary judgment filed by a group of intervenors against gay marriage and supporting the validity of the law. The case is set in front of the one and only Chief Judge Vaughn Walker of NDCA.

Here is the report from the San Jose Mercury News:

A federal judge on Wednesday refused to dismiss a legal challenge to Proposition 8, concluding that the ongoing courtroom battle over California’s voter-approved ban on gay marriage must be resolved in a full-blown trial.

After two hours of legal sparring, Chief U.S. District Judge Vaughn Walker rejected the arguments of Prop. 8 supporters, who maintained that U.S. Supreme Court precedent and a lack of proof of constitutional violations should sidetrack a lawsuit designed to overturn the ballot measure. Instead, Walker, sensing the challenge to Prop. 8 ultimately could wind up before the Supreme Court, wants a trial to develop a full factual record, including forcing Prop. 8 supporters to justify the reasons behind a state ban on allowing gay couples to wed.

One by one, the judge shot down the legal reasons Prop. 8 lawyers presented to resolve the case now and allow the same-sex marriage ban to remain in force. In particular, the judge seemed particularly unpersuaded by Prop. 8 attorney Charles Cooper’s chief argument for a state law confining marriage to heterosexual couples — that the state has an interest in protecting “traditional” marriage because of its importance to procreation in society.

“Procreation doesn’t require marriage,” Walker noted, citing statistics showing that a large percentage of children are born out of wedlock.

A representative from Law Dork was on hand and related this analysis:

Questions about whether animus animated Proposition 8 and the relevance of that claimed animus, Walker ruled, would benefit from a more complete record to be developed at trial because both issues remain in dispute.

Finally, the Proposition 8 proponents had asked the Court to rule against the Plaintiffs based on the U.S. Supreme Court decision in Baker v. Nelson. The Baker decision is a 1972 opinion by the Court dismissing a marriage case from Minnesota “for want of a substantial federal question.” 409 U.S. 810 (1972). The Plaintiffs were represented today in court by Ted Olson.

The proponents of Proposition 8, represented today in court by Charles Cooper, argued that the brief Supreme Court dismissal in 1972 meant that no federal judge could hear a similar case because the only the Supreme Court could reverse its Baker opinion. This was considered a very weak argument by many lawyers to consider the matter, particularly in light of Romer and Lawrence, and Judge Walker agreed.

This is an extremely notable ruling as Judge Walker appears to have made it from the bench at the conclusion of oral argument; he did not even bother to take it under advisement and save it for his written opinion. That is a judge totally convinced of the decision.

This is a very good, if not great, ruling and sets the stage for trial on the matter, which is already set for January of next year. Civil libertarians have to take their victories where they find them. This is another striking one coming out of the hallowed ground of the Northern District of California. My hat is off, there is something special going on up there.

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Originally Posted @ https://www.emptywheel.net/ideas-and-ideology/page/15/