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Wednesday, August 25, 2010

Pap and twaddle from Broder: McCain should save GOP from "extremism"

I can't remember the last time I read anything in a David Broder column that I agreed with, and his op-ed in today's WaPo — which calls upon John McCain to provide "adult leadership ... for both his party and his country" — is no exception.

Broder argues that "[o]ne of the conspicuous failings in the past few years has been the absence of a second party making principled decisions on when to support and when to oppose the president." That's patently untrue: It's only GOP support for Obama's continuance of most of George W. Bush's GWOT policies that have kept the Dems from reprising what they did to this country, our allies, and the rest of the world starting in 1974-1975, when they condemned South Vietnam to a brutal and deadly Communist takeover. And the support Obama has gotten from the GOP is not due to leadership from John McCain or anyone else in particular, but because the GOP rank and file in both chambers of Congress understand that a combination of self-abasement and cutting-and-running is the worst possible response to any enemy, certainly including our Islamofascist ones.

Sen. John McCain (R-AZ) and wife greet supporters after 2010 GOP primary win. (Fair use photo credit: The Arizona Republic)There are many positive things that can be said of John McCain, and I'm pretty sure I said them all, many times each, after he'd locked up the GOP presidential nomination in 2008. But 2008 was a year of extraordinarily weak GOP candidates. And the fact that McCain survived a strong primary challenge in 2010 after getting blown out in a presidential election in 2008 doesn't suddenly convert him from an old senator into an elder statesman. Like John Kerry, he's an embarrassingly bad former-nominee who just keeps hanging around the Senate; he gets exactly the respect there which he's due, which is not "none," but which means that nobody else there is much inclined to follow his lead just because of who he is (or was).

I believe in the two-party system even when it's sputtering, and while I never had any illusions about McCain's ample flaws, neither did I ever entertain any illusions that any of the non-GOP alternatives might have been remotely acceptable. (Hillary & Hubby might have turned out slightly better than Obama has, but only slightly, and at what cost in sleaze?) Of the bunch who'd sought the GOP nomination along with McCain, Fred Thompson was by far my favorite, but Fred had nowhere near enough of the proverbial fire in the belly. As a result, he got in too late, and he didn't run nearly hard enough to make up for McCain's advantage (as the runner-up from 2000) in the front-loaded winner-take-all set of early GOP primaries. But Fred was my favorite in substantial part because he was the only major GOP candidate who actually had a long-demonstrated commitment to core conservative principles. As a naval aviator John McCain had the tenacity and courage to resist his North Vietnamese torturers, but as a politician he's too often succumbed to the superficial allure of liberal pap and twaddle.

I'm a big-tent Republican, meaning I welcome the vote and the support of even those voters whose only agreement with me is that an opposing Democratic candidate is, for whatever reason, worse. But welcoming people into the tent isn't the same as pitching the tent's center-pole on unstable ground, which is what we did in 2008: Against the tsunami of willful self-delusion that propelled Obama into office — and welcome back, by the way, all of you whose eyes have been re-opened, you who persuaded yourself (although you should have known better) that all that "tax and spend/redistribute the wealth/blame America first" stuff was just empty GOP rhetoric instead of fundamental Obama dogma — we put up a Republican Lite. We needed instead, as we always need, to offer the voters a full-bodied Reagan-style Republican. And there just wasn't one of those available in 2007-2008.

It's the nature of cycles — political, economic, or otherwise — that there are bad times punctuating the good. We can only fully appreciate Reagan's greatness, for example, by contrasting him with his disastrous predecessor, Jimmy Carter. And so too it may take the horrors of Obama to prepare the nation to appreciate and embrace another genuinely conservative leader from the Grand Old Party in 2012.

I don't know who that will be yet. But I'm very, very sure that David Broder's instinct — which is to implore the Grumpy Old Warrior from Arizona (via the Canal Zone and the U.S. Navy) to lead his fellow Republicans to politely acquiesce in the ongoing Democratic rape of our national economy and our international self-abasement before our enemies — is bonkers. Broder's suggestion that we somehow need McCain to save the GOP from "an experiment in extremism" — meaning a return to Reagan Republicanism — gave me the best belly-laugh I've had all week. You want to talk "extremism," I'll show you some genuinely extreme extremism:

Updated (as of Feb 2010) chart from the Heritage Foundation, based on source data from OMB and CBO

Posted by Beldar at 07:33 PM in 2008 Election, 2012 Election, Congress, McCain, Obama, Politics (2010) | Permalink | Comments (10) | TrackBack

Friday, August 20, 2010

Odd traffic from Pandagon.net

I have only the cheap and free version of Sitemeter, and although TypePad also offers some metrics, I don't spend much time — even when I've been blogging recently — checking stats to see which other websites are referring traffic here. I notice sometimes when folks have linked me; I'm sure I miss noticing others. But the last couple of days I've been getting hits from pandagon.net — a leftie site that I gather is quite popular, but not one which I frequent. So I took a look, and found that I'd been linked as part of a post by someone named Jesse Taylor in a post entitled "Ten Questions Nobody Ever Asked About George W. Bush," thusly:

6.) Where are George W. Bush’s MBA projects and papers?

That's a link to a post about Obama that I wrote during the 2008 election season — specifically, on June 23, 2008. My post was triggered by a widely remarked article by Jeffrey Ressner and Ben Smith on the Politico website in which they reported on Obama's tenure at Harvard Law and, in particular, on the Harvard Law Review. They'd said:

One thing Obama did not do while with the review was publish any of his own work. Campaign spokesman Ben LaBolt said Obama didn't write any articles for the Review, though his two semesters at the helm did produce a wide range of edited case analyses and unsigned "notes" from Harvard students.

The thrust of my long-winded rejoinder was to say: Gee, based on what I know about law reviews, from my own admittedly different perspective as an editor at a competing one a few years before Obama's time, the assertion that Obama hadn't written or published any student work seemed extremely odd and improbable for someone who went on to become the head (editor-in-chief or, as at HLS, "president") of his or her law review.

I was right, and Ressner and Smith were wrong, although it appears that the reason they were wrong was that they'd been misled by the Obama campaign for reasons no one has ever adequately explained: As I explained on August 22, 2008*, in a prominent update to my June 23rd post, Ressner's and Smith's own subsequent reporting revealed "Obama's lost law review article" — actually a student casenote. I wrote at greater length about the apparent contradictions from the Obama team on this subject. My criticisms put me in company with, for example, such right-wing observers of the Obama campaign as Noam Scheiber at The New Republic.

I'm not sure what to make of this new link from Mr. or Ms. Taylor, then — other than as a general, and pathetic, example of the current Obama apologists' annoying whining about political problems of The One's own making, and especially of their need to continually re-invoke, somehow, Booooosh. As for their premise that George W. Bush's life was never put under a microscope, obviously those folks slept through the 2004 election and the entire TANG/Rathergate controversy. Silly libs.

Oh, wait — Mr. or Ms. Taylor apparently wasn't asleep for all of 2004. Google-searching my own site, I'm reminded that he or she linked me in October 2004 from a pandagon.net post entitled The Hollow Echos of Jackboots. Sweet!

Posted by Beldar at 09:56 PM in 2008 Election, Obama, Politics (2008), Politics (2010), Weblogs | Permalink | Comments (10) | TrackBack

Wednesday, August 18, 2010

U.S. 4th Stryker Brigade of the 2nd Infantry Division leaves Iraq

The last American combat brigade has left Iraq.

Sgt. Luke Hitchcock, 26, of Olean, N.Y., covers the .50-caliber machine gun atop his vehicle after his unit arrives in Kuwait. Fair-use photo & caption credit: Ernesto Londono-The Washington Post Its soldiers did so, like all of the other American and coalition forces who've served and returned, as heroes. My pride in them and gratitude for them is boundless; it's a worthy national goal to simply strive to be worthy of the men and women who've volunteered to serve in America's military. They are magnificent.

The remaining American forces, roughly 50,000 in number, are tasked mostly for training missions. "Training" can include "goin' along" with Iraqi forces on dangerous stuff; at least some of our trainers and support personnel could be re-tasked to more violent pursuits in a sufficient pinch; and even non-combat military operations can be awfully dangerous. Our remaining forces will still see casualties at some level.

But this news brought to mind a post I wrote in October 2003, not too long after we'd toppled Saddam, entitled The Slog: Paying the priceless price on a time-payment plan. Immodestly, I think it holds up pretty well.


UPDATE (Thu Aug 19 @ 10:55 a.m.): A military source advises NRO's Dan Foster that the WaPo's generalization regarding the "last combat brigade" may be somewhat misleading, as there will still be five brigades remaining in training capacities that have comparable (and therefore very substantial) combat power if needed. I'm glad to hear that. I'm pretty sure the U.S. forces still in Germany and South Korea, for example, are also potent and well prepared for more than just parade-ground duties, decades after almost all of the shooting there has stopped. In some respects it's a symbolic gesture to declare "Operation Iraqi Freedom" over, just as it was a symbolic gesture for Bush, on the deck of the Lincoln, to declare the end of major combat operations. But yeah, by then we'd accomplished regime change and stopped fighting major actions against organized uniformed Iraqi forces, and now we're down to a much smaller sized force whose main purpose isn't fighting. That certainly doesn't mean they can't if called upon to. But it's still a transition worth noting with pride and satisfaction.

Posted by Beldar at 11:45 PM in Global War on Terror | Permalink | Comments (2) | TrackBack

Last word (for now) about reading Ninth Circuit tea leaves associated with the stay ruling in Perry

I emailed Prof. Hasen after my last update to my long post from Monday and Tuesday in which I was trying to read tea leaves from the composition of the Ninth Circuit panel that stayed Judge Vaughn Walker's invalidation of California's Proposition 8. Prof. Hasen had been quoted in the press as saying that a new and different panel would definitely hear the appeal on its merits.

In his prompt and gracious email reply, he has confirmed to me that he was indeed relying in part on his personal experience from past appeals in the Ninth Circuit, and he pointed me to the Ninth Circuit's Standing Orders, which (he said) clearly distinguishes between "motions panels" and "merits panels."

The Standing Orders, which run to some 122 pages, is a set of procedures and rules distinct from and supplementary to the Federal Rules of Appellate Procedure and the Ninth Circuit's own local rules. In them, for example, are several references (e.g., sections 1.12 and 3.7) regarding how the Ninth Circuit handles "comeback cases," but they don't seem to speak specifically to this situation. Much of Chapter 6 of the Standing Orders relates specifically to motions and motions panels, however, and to the coordination of actions by the motions panels once a case has been assigned to a merits panel either for summary disposition or for oral argument.

I have not read the Standing Orders carefully, but I'm more than willing to defer to Prof. Hasen's reading of them and his personal experience. If I do understand them correctly, however, there either has been, or soon will be, a merits panel assigned to this case in connection with the briefing and December oral argument ordered by the motions panel. And from that moment on, that merits panel will have plenary (complete) authority over everything to do with the appeal (subject, of course, to eventual en banc and SCOTUS review). Prior motions panels will be out of the picture entirely (subject only to the possibility that one of those same judges may, by random assignment, end up on the merits panel too). And it's likely that neither the public nor the litigants will be told who's on the merits panel until shortly before the oral argument.

Thus endeth my tea leaf reading for now.


As for the significance of the motions panel having granted the stay:

Prof. Hasen was also kind enough to point me by email to this later post of his on the American Constitution Society's blog. (The ACS has been described as "the left-leaning equivalent of the Federalist Society," for those of my readers not immediately familiar with it.) I agree with almost all of what he's written there, including his ultimate conclusion that "for those who want to predict what will happen in the appellate courts, there's really very little to go on so far." But I would quibble slightly with his downplaying of the role of probability of success on the merits. He writes:

[S]ome have suggested that the decision to grant a stay must have reflected a belief on the part of the motions panel that the appeal had merit, because judges are supposed to take likelihood of success on appeal into account in deciding whether or not to grant a stay. [I'm one among many who've made that suggestion. — Beldar] Though it is possible that likelihood of success on appeal played a part in the motions panel's decision, my guess (and it is only a guess, because the motions panel offered no explanation for its stay order) is that a stronger factor was a desire to preserve the status quo pending appeal. Without a stay, there could have been a number of gay marriages performed while the case was on appeal, and in the event that Judge Walker's decision was reversed on the merits, then there would be further litigation over the status of those marriages and potentially a lot of disappointed people and difficult financial and family law issues to untangle. Preserving the status quo has always been a very strong factor in considering whether or not a stay should be granted.

Prof. Hasen's certainly right that maintenance of the status quo is, in theory, also a value that's supposed to be taken into account in deciding stay applications. Determination of whether and how much that particular factor counts in a given case often leads litigants to argue about what actually is the status quo. Here, it depends how far "ante" you go — do we count the days when the California Supreme Court had judicially imposed same-sex marriage, or do we only count the days after Prop 8, approved by the voters in reaction to that judicial action, re-imposed heterosexual marriage as the exclusive possibility?

Moreover, those seeking ssm by judicial decree — and I don't know if Prof. Hasen is among their number or not — always argue that the right of gays to marry is a "fundamental right," the abridgment of which is a particular tragedy, and the sort of right that federal courts ought to be most aggressive in protecting. Can you imagine that in weighing the factors for and against a stay application, a federal judge would give defining weight to maintaining the status quo over protecting a fundamental constitutional right that's being continuously abridged if, for example, the status quo consisted of California denying an opportunity to marry to everyone of Asian descent or of the Roman Catholic faith?

And I'm still entirely unimpressed with the argument that a Ninth Circuit stay is good news for all ssm-supporters because "an emergency stay request could have brought the issue to [presumed swing-Justice Kennedy] without giving him time for adequate reflection and rumination on the constitutional issues." That amounts to saying "Our position is weak right now but it might get better later, or better if we have lots more time and opportunity to talk Justice Kennedy into it." It amounts to a prediction by ssm-by-decree supporters that they think Kennedy's first instincts will be against them, a concession that they're fighting an uphill battle with the very Justice whose vote they most need.

But it's not as if same-sex marriage is an issue that Anthony Kennedy's never had to think about. Do we think he didn't bother to read Justice Scalia's dissent in Lawrence v. Texas, which explicitly predicted — as a reason against employing the substantive due process argument upon which Justice Kennedy's majority opinion was then relying — that the majority opinion in Lawrence would be used (as District Judge Walker has now done) as a ground to impose same-sex marriage by judicial decree?

As I've said before, concerns about how the presently composed SCOTUS will come down on these issues would have been a very good reason for Perry not to have been filed in the first place, because (from the viewpoint of ssm-supporters in general) it's created the worst possible setting — invalidating seven million fresh California votes on the subject — to impose same-sex marriage by judicial decree. Saying that another way: It's hard to imagine a more dramatic display of the anti-democratic nature of judicial activism.


UPDATE (Thu Aug 19 @ 12:45 a.m.): By email, Prof. Hasen points out that even to the extent that the motions panel did base their stay ruling on their views as to probability of success, he's still disinclined to read anything into the motions panel decision because the merits will be decided by three altogether different judges. He'd also made that point in his ACL blog post that I linked and quoted above, and I readily concede it. Three new random new judges won't be bound by any precedential effect or law-of-the-case or anything else from the motions panel's ruling this week; when the members of the merits panel first begin forming definitive opinions on the merits, they'll presumably be approaching those issues afresh, working from newer and more thorough briefing. Thus when it comes to predicting what the merits panel might do, this ruling by the August 2010 motions panel has value only as a spot survey of three random Ninth Circuit judges, and then only to the extent that they gave weight to "probability of success" as one of several competing criteria (that include maintenance of the status quo).

Still, the stay opponents couldn't wrangle even a dissent, maybe even a special concurrence, from a panel with two Clinton nominees? On a civil rights case that's under a national microscope? When the district court had already refused a stay? Would many people have predicted that result last week, if all they'd known were the issues, the district court's ruling, and the political party of the presidents who appointed these judges?

I agree these are weak tea leaves, and I am admittedly quibbling by continuing to attribute a particular meaning to them. But to whatever extent this interim ruling does mean anything, I think it doesn't bode well for those who're hoping the Ninth Circuit will affirm court-imposed same-sex marriage. If I were in Olsen's or Boies' shoes — and I also readily concede that no one's actually asked me to fill them, and their team appears to be prepared to struggle on without my assistance — I'd consider the ruling a small piece of bad news that's somewhat troubling even beyond its immediate impact on same-sex partners eager to marry in California.

Posted by Beldar at 09:12 PM in Current Affairs, Law (2010), SCOTUS & federal courts | Permalink | Comments (1) | TrackBack

A question for EDMO supporters

A comment from frequent (and therefore patient) reader Gregory Koster prompts me to ask a question for all of my friends who promoted, or just supported, "Everybody Draw Mohammed Day":

Should we now put up giant sheets of butcher paper on the walls of whatever buildings are adjacent to the site of the proposed new Islamic center and mosque near Ground Zero; set up step-ladders and bins of brightly colored magic markers; and then have "Everyone Draw Mohammed Next Door to the Ground Zero Mosque Day"? Or perhaps we should have it there every day?

I'm sure some of the patrons (or if not, the hecklers) from Greg Gutfield's gay bar next door would participate, and heck, being a fun and funny guy who's rolling in the big media bucks these days, Greg might even donate the wall space, paper, markers, and ladders!

Posted by Beldar at 06:37 PM in Current Affairs, Global War on Terror, Humor | Permalink | Comments (11) | TrackBack

Tuesday, August 17, 2010

In same-sex marriage appeal, Ninth Circuit surprises Beldar with both composition of panel and results

[UPDATE (Wed Aug 18 @ 9:20 p.m.): Most of my speculation in this post is based on an apparently mistaken premise that I shared with other pundits who were speculating about the Perry case — viz, that the granting of emergency relief, like a stay pending appeal, by a Ninth Circuit motions panel would result in the merits of the appeal then being directed to that same panel. See my new post, which expand on the comments in the last updates below regarding Prof. Rick Hasen's comments in the press. — Beldar]


Along with many other legal pundits, I had predicted — not here, but on August 8 and again on August 13 in comments over on Patterico's blog — that the Ninth Circuit would refuse to stay U.S. District Judge Vaughn R. Walker's decision striking down California's "Proposition 8" state constitutional amendment that re-established the exclusivity of opposite-sex marriage there.

Today the Ninth Circuit proved my prediction wrong in a remarkable page-and-a-half order, the operative language of which amounts to less than a dozen sentences — but each of them is significant.

My prediction was not based on my view of what ruling would have been proper under the law — and for the record, let me promptly confirm that I think a stay is entirely appropriate, and that in due course Judge Walker's decision should be reversed and rendered by the appellate courts — but rather upon my admittedly cynical expectations based on my perception of the politics of the particular Ninth Circuit judges who I expected to be on the three-judge panel that would rule on the appellants' stay application: U.S. Circuit Judges Kim McLain Wardlaw, Raymond C. Fisher, and Marsha Siegel Berzon, all Clinton appointees who hail, respectively, from Pasadena, Pasadena, and San Francisco.

Instead, the three-judge panel that actually issued today's ruling comprised U.S. Circuit Judges Edward Leavy, Michael Daly Hawkins, and Sidney Runyon Thomas.

My friend and California/Ninth Circuit practitioner Patterico points out to me by email that these three judges comprise the Ninth Circuit's standing motions panel for August 2010, having been "[pre-]assigned [by the Ninth Circuit Clerk's office, under the administration of the Chief Judge, Alex Kozinski,] to consider ready substantive motions matters" which arise during that month. Every circuit maintains such a panel — emergency motions like this are sometimes purely procedural, sometimes somewhat substantive, but generally amount to "judicial scut-work" most of the time — and the membership of such panels typically rotates automatically, with different members serving every month. (For posterity, since the current page on the Ninth Circuit website listing members of the motions panel for August 2010 will change next month, here's a link to a .pdf capture of that page as of tonight.)

My prior understanding, however, was that the Ninth Circuit — like the Fifth, when I clerked for one of its judges way back in 1980-1981 — would automatically bypass the rotating motions panel when there was a subsequent appeal or emergency motion from a case that had already been heard by a prior Ninth Circuit panel, even if that was just a prior motions panel (as opposed to a panel that had heard a full appeal on the merits from a district court final judgment). Judges Wardlaw, Fisher, and Berzon — who, I assume, were the three members of an earlier motions panel — had heard and denied the earlier stay application last December in connection with Judge Walker's original ruling permitting the trial to be televised. So my assumption (shared by many other legal pundits) was that those same three judges would hear this motion too.

Some other facts that may or may not be, or become, significant:

  • Judges Leavy and Hawkins are senior status judges. Senior status judges normally don't participate in the internal debate or voting on whether a panel decision should be reheard by the full circuit sitting en banc, which can sometimes affect the internal court dynamics of an appeal as it works it way through the circuit-court level and before it's considered by the SCOTUS.

  • Judge Leavy was appointed by President Reagan, and Judges Hawkins and Thomas were Clinton appointees, but I don't know much more about them than that and the other very basic information in the Federal Judicial Center's biographical database.

  • Although the Ninth Circuit is headquartered in San Francisco and appeals from the four Californa federal districts make up the majority of Ninth Circuit cases, there are other western states in the circuit, with circuit judges appointed from each; somewhat improbably, however, none of the three judges on this panel lives in California: Judge Leavy lives in Portland, Judge Hawkins in Phoenix, and Judge Thomas in Billings. Before I learned that they're on the August motions panel, I wondered whether perhaps Wardlaw, Fisher, and Berzon had been disqualified or had recused themselves based on their California citizenship. (FWIW, I don't think such recusal/disqualification is required.)

In addition to staying the effect of Judge Walker's decision, the panel sua sponte — that is, on "its own motion," without anyone connected to the case asking it to — set the case for an expedited appeal, on an accelerated briefing schedule shorter than the default deadlines established by the Federal Rules of Appellate Procedure that had already been applied to this appeal. The panel also announced that no exceptions or extensions are likely to be granted. (This same panel would hear such procedural motions.) And the panel also directed that the appellants "include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing," thereby ensuring that the standing issues will be fully briefed by both sides as part of the consideration of the merits of the appeal.

I'm still looking into this, and will quite possibly have updates to this post depending on what I find.


UPDATE (Tue Aug 17 @ 12:25 a.m.): This is from the Court Structure and Procedures preface to the Ninth Circuit Rules, under section E(4) on "Court Procedures for Processing and Hearing of Cases":

The only exception to the rule of random assignment of cases to panels is that a case heard by the Court on a prior appeal may be set before the same panel upon a later appeal. If the panel that originally heard the matter does not specify its intent to retain jurisdiction over any further appeal, the parties may file a motion to have the case heard by the original panel. Matters on remand from the United States Supreme Court are referred to the panel that previously heard the matter.

This sort of rule is common in both state and federal court systems, and it's intended to promote judicial economy by directing particular cases to judges who may already be "up to speed" on them. It's not unknown for such rules to generate some gamesmanship by the litigants, however, and more rarely, even by judges or clerks' office personnel. Typically if there's any question about how or whether such a rule applies in a given case, the clerk turns for an answer to the chief judge. And the administrative power to make such procedural rulings is, as a practical matter, an important adjunct of a chief judge's power as "first among equals" on any given court.

What's currently before the Ninth Circuit does have a different Ninth Circuit docket number (No. 10-16696) from the proceedings on the trial televising ruling (No. 09-17241), so it's possible that someone in Clerk Molly C. Dwyer's office either never considered directing this stay motion to the earlier panel, or else thought about it and concluded, "Nope, this is not a 'later appeal' from the 'same matter' within the meaning of the rule." Or the Ninth Circuit Clerk's office may have a standing, but (perhaps) unwritten, rule that prior decisions by mere motions panels don't count unless it's for another procedural motion that's from the same stage of an appeal (e.g., also from after a final judgment), such that a prior motions panel ruling from an emergency interlocutory appeal just doesn't qualify for the re-assignment rule.

On the Ninth Circuit's helpful web page accumulating filings from this case, I don't see any separate motion by the respondents (that is, the ssm-proponents who won before Judge Walker) asking for their opponents' stay motion to be assigned back to the same panel that had heard the earlier motions in connection with televising the trial. That might turn out to have been a tactical blunder by Olsen and Boies and their allies, perhaps based on their assumption that the Clerk would make that re-assignment automatically.

As for whether this same motions panel will — by virtue of having ruled on the stay application and, sua sponte, on the briefing schedule — will now be assigned the appeal on the merits, I just don't know the answer to that question. Before today, I would have said "yes" with some confidence. But if the Wardlaw-Fisher-Siegel panel didn't hear the stay application, I'm not sure whether the Leavy-Hawkins-Thomas panel will hear the merits, especially given that two members of the latter are senior status judges.


UPDATE (Tue Aug 17 @ 12:55 a.m.): There was a tip-off as to who the panel would be: On Friday, August 13, there was a short order from the current motions panel — Leavy-Hawkins-Thomas — granting the appellants' motion for leave to exceed the normal page limitations in connection with their stay application. But it's Docket No. 14 in the Ninth Circuit's docket. Even with instantaneous service by email, Olsen, Boies et al. probably did not have had that order in-hand when they prepared and filed their response (which has Docket No. 9 and was e-filed on that same date). I haven't read them yet, but a word-search of the .pdf files indicates that the word "panel" doesn't appear in either their response or the responses filed by their allies fighting the stay (the City & County of San Francisco and, despicably, the California Attorney General).

Others (besides me and Patterico) who had speculated that the Wardlaw-Fisher-Berzon panel would hear the appeal on the merits include Orin Kerr at the Volokh Conspiracy and bmaz at Empty Wheel/Firedoglake. Prof. Kerr added a parenthetical edit, perhaps presciently: "(edit: just to be clear, I mean the Ninth Circuit merits panel, not the motions panel that will hear the stay denial in the next few days)." But if the above-quoted provision of the Ninth Circuit rules didn't even get this stay motion back to the Wardlaw-Fisher-Berzon panel, then why would it get the decision on the merits back to them? And will it even get the case back to the Leavy-Hawkins-Thomas panel?


UPDATE (Tue Aug 17 @ 1:35 a.m.): The Advocate (h/t AllahPundit at Hot Air) quotes representatives from the California AG's office (heh) and the legal teams seeking to overturn the ssm-amendment as saying they won't ask the SCOTUS to overturn the stay. Presumably that also means they won't seek panel or en banc reconsideration of the stay at the Ninth Circuit level either. As for how it's being spun:

"We are very cognizant of the fact that many people wanted to get married as soon as possible, and that's why we so strongly opposed the stay," plaintiffs' attorney Ted Boutrous, who argued the case alongside lead attorneys Ted Olson and David Boies, told The Advocate. "But at the same time, had the stay not been entered, it may have been harder to get such an expedited briefing schedule in the case."

Another legal source, who declined to be named, said that had the ninth circuit ruled against a stay, an appeal by Prop. 8 supporters to the Supreme Court could have been harmful to Olson and Boies's highly strategical [sic] case. "When you have an important constitutional issue, as is the case here, you don’t want the first time it comes before the justices to be a high-pressure, high-speed situation," the source said. "You’d rather have it come on a full record and on a schedule where the court has time to consider the issues carefully.

"You don’t want this hitting their schedule when it's summer and they're on vacation," the source added.

The spin strikes me as spectacularly weak sauce: Yeah, if the stay had been denied, they might not have gotten an expedited briefing and argument schedule, but in the meantime, thousands of gays would have been getting married. Whether those marriages will later — after SCOTUS review — still be deemed valid can't possibly depend on whether they were entered into solely on the strength of Judge Walker's unstayed ruling or, instead, on the strength of a potential later affirmance of his ruling by the Ninth Circuit on the merits. Boutrous' suggestion that the stay somehow benefits gays wanting to get married in California is simply ridiculous, a particularly unpersuasive example of "well, we really sort of wanted to lose that motion, regardless of what our court filings said." Moreover, even in a "highly strategical case" (which I suppose is one in which you have to be extra careful not to misunderestimate your opponent), if you think that an appellate judge's first instinct would be to go with your side, then you quite possibly might prefer to present the issues to him for the first time in an emergency setting. And the "summer vacation" argument is childish. Whoever made those arguments, even for purposes of spin in the press, was very wise not to agree to be named.


UPDATE (Tue Aug 17 @ 2:15 a.m.): Musing on the significance of the order's concluding sentence and case citation regarding standing, Allahpundit writes (links his):

As of an hour ago, the first weddings were set to start at 5 p.m. on Wednesday; now they won’t happen until December at the earliest, with no explanation given of how Walker erred. Presumably they figured there’s enough of a chance that Prop 8 supporters will win on appeal that they didn’t want to let marriages happen now, only to have to void them later. That’s the good news for gay-marriage opponents; the bad news is that two of the three judges here are Clinton appointees and they’re clearly quite interested in Walker’s argument that Prop 8 supporters lack standing to appeal his decision. Merely postponing the inevitable here?

But if we're debating which tea leaves are strongest and most reliable as predictors, I have a contrary take. The standing issue had already been raised and briefed (albeit in a comparative hurry) by both sides in the stay application and responses. Every appellant has the obligation to demonstrate to the appellate court that it has federal subject-matter jurisdiction and that the appeal meets the other "case or controversy" jurisprudential requirements like standing, ripeness, non-mootness, etc., so there is absolutely no chance that the appellants would have ignored those issues in this case. However, precisely because it's so basic, if even one judge on the panel requested a sentence like this one — even if he simply wanted that briefing in order to confirm his or her preliminary view that there is indeed standing — then whoever drafted the order for the panel certainly would have included it. The sentence requesting this briefing is not the sort of thing anyone would object to including in the order, in other words, and I really don't think it necessarily implies anything important as a result.

Far more importantly: Probability of success on the merits is explicitly made part of the standard of review for stay applications like this one. If you lack standing, your probability of success is zero. Probability of success on the merits is not determinative by itself, but it's very important — easily the single most important factor in most situations. Implicit in the unanimous ruling granting the stay, therefore, is that at least two judges are satisfied — at least for the present preliminary purposes, that being deciding an emergency stay motion — that there is adequate standing. They (or others) might come to a contrary decision later, but that's the decision of at least two of these judges, at least for today. If, by contrast, even two members of this motions panel really seriously thought that the opponents had already made a persuasive case that there's no standing, that should have resulted in the stay being denied. (If only one judge thought there's a serious doubt about standing, he/she might well have decided not to write that up now as a dissent to the stay ruling — such dissents are extremely rare at the circuit court level — but instead to kick that overt discussion on down the road to the panel proceedings on the merits, with the possibility that full briefing may persuade at least one of his/her panel-mates to agree there's no standing, or perhaps with the possibility that it will be an altogether new panel, with three entirely different members, who may hear the appeal on the merits.)

Also, Prof. William A. Jacobson at Le-gal In-sur-rec-tion speculates that the November election results and January office-taking of a new California governor and attorney general might affect the standing issue in a way that will help Prop 8 supporters. He might be right, but I haven't done enough to refresh my recollection and update my knowledge on standing to weigh in on that. When a governor or AG may decide to stop trying to defend the validity (under the federal constitution) of a state statute or state constitutional provision is an interesting mix of constitutional law, civics, and even legal ethics. I didn't disapprove, for example, of the Texas solicitor general's and attorney general's decision not to seek certiorari from the Fifth Circuit ruling striking down Texas' "five-dildo" rule, even though the Fifth Circuit had explicitly created a split between the circuits; but that was after full briefing and a decision on the merits by a Fifth Circuit panel, and after a motion for rehearing en banc had been denied. Morever, millions of Texans had not just voted to confirm the five-dildo rule!


UPDATE (Tue Aug 17 @ 6:15 a.m.): From the NYT's article on the decision (boldface mine):

Richard L. Hasen, a professor of law at the Loyola Law School Los Angeles, said the ruling "takes the heat off the Supreme Court," which was likely to have been asked for an emergency stay by those who support Proposition 8 if the Ninth Circuit had not acted.

But Mr. Hasen added that the stay’s putting a halt to any potential marriages did not mean that the Ninth Circuit would necessarily rule in favor of Proposition 8.

"I don’t think that the granting of the stay means much, if anything, about how the Ninth Circuit will rule on the merits," he said. "It won’t be the same panel deciding the merits as decided the stay motion."

Mr. Hasen added he believed that even supporters of same-sex marriage could see the logic of extending a stay.

I hold Prof. Hasen in high regard, and having clerked for a judge on the Ninth Circuit, he has vastly more experience with that court than I have. (I've only appeared as counsel there once, and that was long ago.) I agree with his first observation, regarding Monday's panel ruling "tak[ing] the heat off the Supreme Court," although the SCOTUS is pretty much used to such heat and it naturally comes with their institutional responsibilities. I wish I knew the exact basis for his assertion that it "won't be the same panel," but I certainly can't dispute that conclusion. And I don't know what to make of his last comment: I think there are excellent reasons for proponents of same-sex marriage to have concluded that as a matter of long-term strategy, it was a mistake to even bring this case, in this fashion, from California at this particular time, in the immediate aftermath of the passage of Prop 8 and with the current composition of the SCOTUS. But (unless the NYT quoted Prof. Hasen out of context), why pretend that this is not a set-back, even a temporary one, for ssm-supporters?


UPDATE (Tue Aug 17 @ 7:10 a.m.): Prof. Hasen's quoted at more length in the LAT (bracketed portion theirs):

Loyola Law School professor Richard Hasen said Monday's order was strategically advantageous for supporters of same-sex marriage, no matter how disappointed many couples may be. If the panel had refused to place a hold on Walker's ruling, the supporters of Proposition 8 were prepared to seek a stay from the Supreme Court. The court is believed to be divided on the question of gay marriage, with Justice Anthony Kennedy considered a swing vote. A vote on a hold might have pushed the justices into taking an early position on the question.

"I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay," said Hasen, an expert on federal court stays. "The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion."

Hasen said the hold "takes the heat" off Kennedy and takes the case "off the front burner for a while."

That makes more sense to me, although I'm not entirely persuaded. The change that ssm-by-judicial-decree supporters would need in the interim is not just another state or two moving into the (so-far quite short) ssm-permitted column, but instead in the occupancy of one of the SCOTUS seats held by Chief Justice Roberts and Justices Scalia, Thomas, Alito, and (possibly) Kennedy.

The LAT leaves unremarked — but I cannot — the cynicism that underlies all this punditry. I'm guilty of it too, but still: How and when, exactly, would the federal Constitution change between now and, say, the five or six months from now during which the Ninth Circuit's expedited proceedings will play out?


UPDATE (Wed Aug 18 @ 9:20 p.m.): As I warned in my update at the top of this post, anyone reading it should also see my newer post for more on Prof. Hasen's statements about an entirely new panel hearing the merits, which I increasingly believe is likely to be the correct prediction.

Posted by Beldar at 12:00 AM in Current Affairs, Law (2010), Politics (2010), SCOTUS & federal courts | Permalink | Comments (6) | TrackBack

Sunday, August 15, 2010

NYT posits that Dems will benefit, compared to 1994, by "lack of surprise" over voter discontent

Today's NYT also contains as nice a piece of self-delusion — entitled "This Time, Voter Anger is No Surprise" — as has ever been recorded in the annals of psychotherapy. It begins with an anecdote and proceeds to what the NYT clearly hopes will be accepted as shrewd political analysis applicable to Democratic incumbents nationally:

A year ago, dozens of protesters gathered outside the district office of Representative Ike Skelton, a Democrat who has represented a wide stretch of western Missouri since 1976. The anger they directed at health care legislation — and by extension most Congressional Democrats — left the party in a state of near panic.

It may, in retrospect, have been the best thing that could have happened to Mr. Skelton and his colleagues.

In the arsenal of advantages that Republicans hold as they seek to win control of Congress this year, one thing is missing: the element of surprise. Unlike 1994, when Republicans shocked Democrats by capturing dozens of seats held by complacent incumbents, there will be no sneak attacks this year. Democrats have sensed trouble for more than a year, with the unrest from town-hall-style meetings last August providing indisputable evidence for any disbelievers.

The result has been to goad many Democrats into better preparation: more fund-raising, earlier advertising, lots of time on the campaign trail.

Because, of course, everyone knows that the incumbents who do more fund-faising, do earlier advertising, and spend more time on the campaign trail should win, regardless of what they've done in office.

U.S. Rep. Ike Skelton (D-MO) Take a step back. There is a significant admission not very well hidden in this delusive fantasy: The Dems have known for at least a year already that their actions in office were angering the public. Did they change what they were doing? No, they did not. They've kept doing what the Democratic Party's collection of special interest groups wants, meaning they've kept up the unprecedented and outrageous volume of government handouts and the associated opportunities for graft. And they've extended the bumbling, fumbling, incompetent, and destructive reach of the federal government further into your health care, your energy use, the cars you drive, and dozens of other aspects of what you used to think of as being "your" lives.

And having spat in their constituents' collective faces, they're going to hunker down, fire up their attack ads, fan the flames of class- and race-warfare, point the finger at Boooosh, and generally hope that this somehow turns out to be, against all polls and predictions, one of those years where they can still fool most of the people all of the time.

Yes, Representative Skelton, you and your buddies have finally captured the public's rapt attention, and now they're on to you. As a consequence, the hanging party has gathered, the pots of tar are heating, and they're cutting up pillows for feathers. But just like the NYT says: all that's the very best set of things that could have happened to you — if you're willing to heed the advance warnings and get the hell out of Washington before they catch up to you. But your lack of surprise at their outrage, brother, isn't likely to save you; instead, it just makes you more guilty.

Posted by Beldar at 06:09 AM in 2010 Election, Congress, Politics (2010) | Permalink | Comments (5) | TrackBack

Obama: L'État c'est Moi! And my job is to tell you, my subjects, what your values should be

One would expect even a junior state senator from Illinois to have a better grasp of politics than Barack Obama has shown in his comments about the proposed Islamic center near Ground Zero. One would certainly expect even a junior lecturer, much less a senior one, from Chicago Law School to have an instant grasp of the difference between whether something's legal and something's wise. Basically, I'd expect anyone running for high school senior class president to be able to draw this kind of distinction with great ease and indisputable clarity if he wished to opine on one question but not the other.

"Amateurish" is insufficient. "Embarrassing" would be presumed, except that Obama has still shown himself to be, quite literally, incapable of being ashamed.

Do you remember all the classic cartoons — Tom & Jerry, for example — in which very large, fierce watch-dogs get very excited, and they run from their doghouses across their yards as fast as they can? And they're practically flying, and they're really about to finally catch the cat when — boing! — they hit the end of their leashes and they're are yanked violently, hilariously, to a complete stop? That's what I was reminded of in reading, first, Greg Sargent's WaPo post from Saturday morning about Obama's Friday night speech being "one of the finest moments of Obama's presidency" precisely because Obama didn't just address the legal issue, but instead expressed his full support for building the center near Ground Zero because it would be flat-out un-American not to welcome and respect the group proposing to build this center; and, second, Mr. Sargent's wounded and genuinely pathetic one-line update after Obama's Saturday "clarifications." (H/t Patterico.) Repeat after me, Mr. Sargent, with more feeling this time: "We've always been at war with Eastasia ...." If you can't pivot on a dime, you're useless as a shill, Mr. Sargent!

But as our mirth finally subsides, let us consider the premise of this entire Obama pratfall, as very deliberately emphasized and then re-emphasized by the president's top handlers and spin-meisters, as reported in their camp newsletter newspaper of choice (emphasis mine):

Faced with withering Republican criticism of his defense of the right of Muslims to build a community center and mosque near ground zero, President Obama quickly recalibrated his remarks on Saturday, a sign that he has waded into even more treacherous political waters than the White House had at first realized....


... Mr. Obama’s attempt to clarify his remarks, less than 24 hours after his initial comments at a White House iftar, a Ramadan sunset dinner, pushed the president even deeper into the thorny debate about Islam, national identity and what it means to be an American — a move that is riskier for him than for his predecessors....


“I think it’s very important, as difficult as some of these issues are, that we stay focused on who we are as a people and what our values are all about,” the president said here on Saturday.


White House aides say Mr. Obama was well aware of the risks. “He understands the politics of it,” David Axelrod, his senior adviser, said in an interview....


Mr. Obama has typically weighed in on such delicate matters only when circumstances have forced his hand, as he did during his campaign for president, when he gave a lengthy speech on race in America in response to controversy swirling around his relationship with his fiery former pastor, Jeremiah Wright.

Debate about the Islamic center had been brewing for weeks, yet Mr. Obama had studiously sidestepped it.

But the Ramadan dinner seemed to leave the president little choice. Aides said there was never any question about what he would say.

“He felt that he had a responsibility to speak,” Mr. Axelrod said.

So let's put aside, for the nonce, whether this issue is remotely comparable in any way to candidate Obama's warm embrace and then bus-throwing-under of Rev. Wright (a political embarrassment unique to Obama and of own making). Let's not necessarily attribute to Obama or his staff, but instead let us assume for now the responsibility of the NYT's writers and editors, for the positively insane assertion that the Islamic religious calendar ever could or should leave the President of the United States "with little choice" or "force his hand." (After all, Obama can not only draw on all of his power as Commander in Chief and Chief Executive, he can fire up his special personal magic to lower the oceans and heal the planet; and you're telling me he's helpless, hopeless, and without alternatives that would let him even choose his own topics of discussion at a short speech at a dinner held to show respect to a religion he insists he doesn't belong to?)

And contrary to Obama's characterization, this controversy is in no way "difficult": Regardless of his or her political preferences, only a moron could fail to understand that (1) it's probably legal but (2) a spectacularly bad idea, as a matter of taste and policy (not law), for an Islamic center of the sort these particular folks are proposing to be built by these particular folks where they're proposing to build it. The only reason this controversy is still getting so much traction is that the 80% of Americans who instinctively understand and accept this simple distinction are quite properly annoyed that Barack Obama and the remaining 20% of Americans continue to insist on arguing about First Amendment rights.

But read again the part I've highlighted with green print — the part about "stay[ing] focused on who we are as a people and what our values are all about." And then re-read the reasoning for why Obama and his staff thought they were compelled to take a position, any position, in this local land use controversy. This administration has once again told you, America, in just so many words, that it sees the President's job as telling you what your values are and, indeed, what they should be.

In fact, Obama and his administration see his role as national nanny and instructor in matters moral to be so paramount that he was forced, despite knowing the risks, to "wade deep" in controversy, to suffer the slings and arrows of outrageous political fortune, just to set us straight on Friday. (And then to set us, uh, straighter, on Saturday.) Oh, poor, poor under-appreciated, misunderstood Barry! Because that's the spin, folks: Obama, according to Axelrod, hasn't been at all politically inept on this, but rather, he's been brave and selfless.

Now aren't you ashamed of yourself? You definitely should be!

The arrogance, the condescension, and the megalomania of Barack Obama and his minions continues to amaze me. Is there no political strategist with access to the Obama White House who can point out the obvious to them — that Obama's credibility has long since been exhausted, that even his relevance is fading, and that the single very best thing he could do for himself and his party right now would be to stop his own endless hemorrhage of talk, talk, talk?

Posted by Beldar at 04:29 AM in Current Affairs, Mainstream Media, Obama, Politics (2010), Religion | Permalink | Comments (3) | TrackBack

Friday, August 13, 2010

The text of Beldar's email today to Michael Gerson

You wrote, "No child born in America can be judged unworthy by John Boehner, because each is his equal."

But no child born anywhere in the world has any better or worse basis to be "judged unworthy," either. Shall we just have done with it, then, and extend American citizenship to everyone born anywhere? Because that is where your logic inescapably runs.

A child didn't choose, or deserve, or not deserve, his parents either. His or her "inherent value" doesn't count for the selection of parents, either, but parents generally end up having an even bigger effect on us all than our citizenship. Sometimes life is unfair.

(Slightly edited for clarity.) If Mr. Gerson responds via email, then I'll bestir myself again to post about it.

Posted by Beldar at 10:37 PM in Current Affairs, Law (2010), Mainstream Media | Permalink | Comments (5) | TrackBack