It may take a couple of election cycles, says Michael Tomasky, but Republican moderation on social issues is inevitable—and many evangelicals will respond by withdrawing from politics.
What are evangelical conservatives going to do? I ask the question not with any sympathy, but with a mountain of schadenfreudian glee—I am profoundly reassured about my country’s direction every time I hear Tony Perkins bemoan it. But however it’s asked, it’s a question that’s growing more and more urgent. Mike Huckabee says that if the GOP embraces same-sex marriage, “evangelicals will take a walk.” Others pooh-pooh this on the usual grounds that they’ve got nowhere else to go. But they do: back to private life. And it’s my bet that in, say, eight or 12 years’ time, that’s where a lot of evangelicals will be. Having gotten into politics to rescue America from the sinners and fornicators, I reckon a critical mass will decide by 2024 that it was fun while it lasted, but that the fight is hopeless.
Demonstrators in support of marriage equality chant outside the Supreme Court in Washington, Tuesday, March 26, 2013. A group of students gather and pray before convocation at Liberty University, the small Baptist college founded by Jerry Falwell, Feb. 13, 2013. (Pablo Martinez Monsivais/AP; Norm Shafer/AP)
It’s going to be fascinating to watch and see what the party does on same-sex marriage as these next months and years progress. I, for one, do not expect to see the senators tumble like dominoes after the push from Ohio’s Rob Portman. Too many of them are from states where adopting that position would be suicide. Remember, we’re talking here not about the mores of the state as a whole, but of its GOP primary voters. So Claire McCaskill could announce her support for same-sex marriage in Democratic Missouri. But Roy Blunt in Republican Missouri? One doubts it. Different state, really. He in fact just reaffirmed his support for the Defense of Marriage Act.
Perusing the list of GOP senators, one sees only a few who might follow Portman. Susan Collins of course; Mark Kirk; Kelly Ayotte, at least on geographic grounds, although she’s quite conservative. You get the idea. I haven’t studied the political situations of all 232 GOP House members, and I won’t, but the general picture is similar. Right now, a grand total of two GOP House members back gay marriage—Ileana Ros-Lehtinen of Florida and Richard Hanna of upstate New York. Two.
At the Justice Department's criminal division, Lanny Breuer was supposed to lead the investigation into the financial crisis--the big banks and Wall Street firms. His track record to many close observers has been other than impressive, let's say. And now, it was announced yesterday, he's returning to his old law firm, Covington & Burling. There, for $4 million a year he'll defend...the big banks and Wall Street firms.
The Huffington Post did a big long investigative piece on the shortcomings of the administration's mortgage crisis task force, which was headed by New York Attorney General Eric Schneiderman. The group didn't exactly do nothing, but it did a lot less than liberals hoped. But the problems weren't Schneiderman's fault. His authority was limited, with most key final decisions made by the criminal division. That article got a fair amount of attention because Mike Lux, a longtime progressive activist who follows these issues, was quoted as saying:
Lanny wanted to go back to a law firm that represented banks after he was done. He didn't want to prosecute the banks...Come to think of this, this can all be on the record. I don't give a f--k.
Breuer expressed his prosecutorial philosophy thus: "In reaching every charging decision, we must take into account the effect of an indictment on innocent employees and shareholders," Breuer said. "Those are the kinds of considerations in white-collar crime cases that literally keep me up at night and which must play a role in responsible enforcement."
This sounds rather gross, but one reckons it's necessary:
The deer of Rock Creek Park have so far avoided a depopulation plan announced last May, thanks to a lawsuit and no thanks to the efforts of an unsanctioned hunter, but they can't live forever. The National Park Service's deer culling finally starts tonight, according to a press release from the agency.
But this is no light spring cleaning! The culling, which will go on nightly through Saturday, is part of a plan to take the deer population from 70 deer per square mile to 15 to 20 deer per square mile.
The Park Service will be closing eight roads around the park from 10 p.m. to 4 a.m. nightly through Saturday for the slaughters.
Reading this New York Times piece about Republican mayoral candidate Joe Lhota takes me back to my NYC days and memories of the great Hillary v. Rudy showdown that never materialized. The article fingers Lhota as the man who walked point on Giuliani's attack on the Brooklyn Museum over the painting "The Holy Virgin Mary" by Chris Ofili, a faux-naif kind of rendering of the blessed mother with elephant dung adding texture and cut-outs of pornographic photographs adding a bit of, ah, color.
Lhota, a deputy mayor for Giuliani at the time, threatened the Brooklyn Museum with its funding. Giuliani himself went on and on about this for days, said that this kind of thing was society's ruination and of course was the fault of sick people like the Clintons. As mayor, Giuliani wasn't always bad. In fact he did a number of good things and took a number of progressive positions. But as a possible Senate candidate in 1999-2000 (until he dropped out), he was a world-class demagogue on all the unfortunate crap he still rails about whenever Fox hauls him out.
Anyway. Lhota, a Catholic, says simultaneously that he has no regrets about his handling of the situation and that he now is the proud owner of a "much clearer understanding" of the First Amendment. No sign that the reporter asked him how both of those can be true. If he has a much clearer understanding of the First Amendment, then by definition he has regrets.
But I'm less interested in Lhota than in thinking back. Oh, what a time. Those first few months of Hillary v. Rudy were just great. She was a terrible candidate, quite frankly, for a number of months. Then at some point she started to get it. That was just before Rudy dropped out. Spring 2000. Then by that fall, she was really good. And of course she became a good senator (not great, but very good) and left New York state with approval ratings in, I think, the low 70s.
I wrote a short and light-hearted piece for Newsweek this week about why it takes so damn long to get a restaurant check in this country:
It happened again not long ago. We went out to dinner and had a perfectly pleasant meal. We were sated. Ready to go. Then we sat. And I wondered what I always wonder: Who among my fellow Americans enjoys this ritual? You ask for the check. The waiter walks away. He brings it. He walks away again. You put your card in the little sleeve. You wait. The waiter picks it up. He walks away again. Eventually, after reciting the specials at one table and opening a bottle of wine at another, he returns. And finally, 20 minutes after you were ready to leave, the restaurant is ready for you to leave.
Now I admit that I'm a bit of an extreme case. I take a strictly utilitarian view of dining out, and when I'm done, I'm done. I want to leave. I get a perverse kick out of shocking waiters, especially at sightly higher-end places, when I ask for the check while they're clearing the dishes. When they return with the bill I have my credit card out and just hand it to them.
As I said I'm extreme, I know. But most people I talk to are generally on my half of this parking lot--not as antsy as I am, but not into lingering. Then came this tweet this morning from a certain Shannon Murphy who evidently works as a waiter:
Yes, an assault-weapons ban is dead. But, argues Michael Tomasky, a decent gun bill still stands a chance of passage—provided five red-state Democrats do the right thing.
Matters look bleak indeed when 50 senators vote for a measure requiring that any bill changing gun laws get a two-thirds majority. Nothing else, not taxes, not anything (except some internal Senate rules), requires a two-thirds vote. That 50 senators voted this way—including six Democrats—shows what a collection of cowards and lickspittles these people are on the issue. If the NRA said gun bills should only be passed after sundown on Tuesdays between Columbus Day and the Ascension of Abdul Baha, they’d rush in with amendments stipulating that it also had to be raining. And yet, there is still a chance—yes, even with the assault-weapons ban dead—that the Senate at least will pass some fairly decent legislation. The NRA can still lose here. It’s important that you know this. They don’t want you to.
People with Occupy The NRA signs protest investments in gun manufacter companies outside the headquarters of Owl Creek Management on Fifth Avenue in New York on March 18, 2013. (Stan Honda/AFP/Getty)
The demented legislation that passed recently emerged from the mysterious gray matter of Mike Lee, the Utah senator. It proved again the maxim, a maxim being re-proven about every few days in contemporary Washington, that no matter how far right the GOP is, it’s never far enough. A two-thirds majority to change any gun law! Someone like Utah Republican Orrin Hatch had to know deep down what a procedural and constitutional abomination this was. But they all had to vote for it on the Republican side—except Mark Kirk, who’s from Illinois. The roll of Democratic dishonor featured Joe Manchin (WV), Max Baucus (MT), Joe Donnelly (IN), Kay Hagan (NC), Heidi Heitkamp (ND), and Mark Pryor (AK).
It didn’t pass, of course, because anything like that needs 60 votes in the Senate. But the mere fact that it got 50 is chilling. Yet even so, a decent bill on background checks is possible. It actually would make a difference, maybe a big difference—maybe a bigger difference than the already failed assault-weapons ban.
Yesterday, commenter Ben, our stalwart Ben, whose loyalty to this blog I always appreciate even as he scolds me for this or that, suggested that I bring to this enterprise some of the seriousness of purpose that can be found in the pages of Democracy, the journal I edit.
Well Ben, a blog and a quarterly journal are different media of course, and I do think we talk about pretty serious things over here, but I take your point, so here you are. The current issue includes a symposium on voting rights. Among the questions raised, this one by Mark Schmitt and Jonathan Soros: Should there be a constitutional right to vote?
Here's the case. First of all, did you know that there is no right to vote in the constitution? Lots of people assume it must be in there, but no. But it's not. And that fact means that when states impose restrictions on voting, none of those restrictions have to pass any constitutional muster or standard. The number of cases challenging voting rules, the authors note, has doubled in the last decade, and they write:
...enshrining the right to vote in the Constitution would help resolve most of these cases in favor of voters. It would not make every limitation unconstitutional—it is the essential nature of voting, for instance, that there be a date certain by which votes must be cast in order to be counted—but it would ensure that these limitations are judged under the standard known as “strict scrutiny,” meaning that governments would have to show that the restrictions were carefully designed to address a compelling interest of the state. We would come to find that many familiar aspects of our current voting system would not meet this standard and access to the ballot could be extended to millions who are now actively or effectively disenfranchised.
This argument is even loonier than I thought. Jeff Rosen has a good whack at it over at TNR today.
The concern of the responsible procreation caucus is, as I suggested yesterday, the growing number of children born out of wedlock. The theory is therefore that this sad statistic proves that straight people can't control their animal instincts, and, since they can procreate anytime (at least up until a certain age, as Kagan drily noted) and find themselves facing the prospect of raising a child...wait. I've paused in the writing here because I think I'm getting this wrong. It's such pretzelish logic that I can't even paraphrase it. Rosen quotes from a brief prepared by the office of Virginia AG Ken Cucinelli:
When two people become parents by way of artificial insemination, surrogacy or adoption, they have not procreated--at least not with one another. Hence, what is missing is society's interest in encouraging couples to consider and plan for the children that inevitably result from impulsive decisions to act on sexual desires. The sexual activity of same-sex couples implies no consequences similar to that of opposite-sex couples.
Indeed, to the extent same-sex couples must take intentional, non-sexual action to become joint parents, such conduct vitiates the need for government involvement. States may assume that couples who by definition can acquire parental rights only through intentional conduct need no further societal approbation or regulation--they are already focused on the consequences of their actions. It is where the parenting may be unintentional, where couples act impulsively while ignoring the consequences, that social ordering is necessary.
While everyone is focused on courts, let's talk about the terrible situation at the DC Circuit court, where four of the 11 seats are vacant and where Senate Republicans have by every appearance just decided that they are not going to let Obama appoint anyone ever.
Last week, Obama withdrew the nomination of Caitlin Halligan after she got just 51 votes (she needed 60 to break the GOP filibuster). She's a prosecutor, but she's not the kind of prosecutor Republicans can accept because she has prosecuted gun manufacturers. The NRA, essentially, blocked her.
The existing seven judges tilt 4-3 Republican. But it's actually far more imbalanced, because a number of elderly judges have taken "senior status" which means part-time work (with full pay) and almost all of those are conservative, including our old pals David Sentelle and Laurence Silberman, who have done such stellar work on questions like shielding Clarence Thomas's obvious lies during his nomination process (Silberman) and helping Kenny Starr (Sentelle) try to nail Clinton.
All sort of issues come before the Court. Just the other day I mentioned the role the DC Circuit played in watering down Dodd-Frank. Here are a few other recent hits, via People for the American Way: invalidating three appointments to the NLRB, striking down air pollution regulations, ruling for the tobacco companies, using a narrow mil regulation to try to roll back 70 years' worth of regs, and so on.
On this matter of marriage existing for the purpose of procreation, Elena Kagan delivered the question of the day. Counsel Charles Cooper was going on about this link when Kagan asked him if it would be constitutional for a state to deny straight couple 55 and older the right to marry.
Boom. LA Times:
Cooper responded that even in that case, at least one member of the marriage would likely still be fertile, a suggestion that drew laughter from the courtroom.
I should say. The whole argument is preposterous. This is a country where nearly half of all children are born out of wedlock. Believe it or not, while I'm hardly in the same school on this as Rick Santorum or my fellow Morgantown native Robbie George, I actually don't think this is a great thing. But it exists. And pretty soon it's going to be above 50 percent, and someday it's going to be above 60 percent. Can anyone in such a society plausibly make an argument that marriage is the great vehicle for procreation?
Kevin Drum wonders about whether the Court might toss the Prop 8 suit on a technicality or a lack-of-standing issue:
Technically, there's an argument to be made that backers of Prop 8 don't have proper standing to sue in this case. And it's easy to say that this would be a fine example of conservatives being hoist by their own petard, since, as Erwin Chemerinsky has pointed out, they're the ones who have been so eager in the past to deny standing in cases involving civil rights, environmental protection, and the separation of church and state.
But this is a case in which lack of standing is purely artificial. The state of California, which would normally be on the hook to defend its own laws, has declined to do so. This decision means that a properly enacted constitutional amendment literally can't be defended in court, and that's just wrong. Like it or not, half the state voted for Prop 8, and one way or another, their interests deserve their day in court.
He has a point there. In this particular case, this would work out kind of well, presumably--same-sex couple in California would presumably be permitted to start getting married again, depending on how the decision was written, and pro-Prop 8 people would have to scrounge around for a litigant who does have standing. So that would be great. But it wouldn't settle anything beyond California.
Forget the legal handicapping, says Michael Tomasky. This Supreme Court is virtually guaranteed to decide same-sex marriage on political—and maybe moral—grounds. Not a comforting thought.
I’ll leave it to the masters of the jurisprudential universe to handicap how the Supreme Court might deal with the two same-sex marriage cases in legal terms. But since this Court is the most nakedly political since at least the New Deal if not ever, I’ll do a little handicapping on political grounds, since it is largely on political grounds that I think the justices (especially the conservatives) decide things. The question, I think, comes down to two factors: how deeply this heavily Catholic conservative majority feels a collective moral antipathy to same-sex marriage; and the role this majority sees the Court playing in the post-2012-election era—what kind of role the Court should play in this alleged redefining of conservatism that’s going on. My hopes, it may not shock you to hear, are not high on either point, but especially the second one.
(L-R) Chief Justice John Roberts and Associate Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan applaud before President Barack Obama's State of the Union address during a joint session of Congress on Capitol Hill in Washington on Feb. 12, 2013. (Charles Dharapak/AP)
Let’s just go over the basics quickly. The Court is hearing two cases today and tomorrow, the Prop 8 case out of California and a challenge to the 1996 Defense of Marriage Act, which defined marriage federally as being between a man and a woman. Because the DOMA case also deals with issues of states’ rights, it seems to most experts I read that the Court will rule against DOMA. Liberal Scotus blogger Scott Lemieux of The American Prospect told me yesterday that he expects to see a 6-3 decision here against DOMA, or maybe even 7-2, leaving only Antonin Scalia and Samuel Alito defending the usual reactionary flank.
The Prop 8 case is more complicated. The legal question here involves whether to uphold a federal court decision from California that Prop 8, which defined marriage as between a man and a woman and passed as a ballot referendum in 2010, is unconstitutional. It can uphold the courts that ruled against Prop 8, in which case same-sex couples can start marrying, perhaps only in California, or perhaps across the nation, depending on how such a decision were to be written. It could strike the California ruling down on narrow grounds in a way that wouldn’t necessarily have much reach beyond California. Or it can say the courts were wrong, the voters were right, Prop 8 stands, and bans on same-sex marriage do not violate the Constitution.
Some conservatives got some attention last week by alleging that the federal government is funding research into duck penises, by way of trying to demonstrate that many taxpayer dollars are wasted and that the sequester is therefore great because it might stop us from funding the study of duck penises.
PolitiFact got curious enough to look into it and decided to give it a "mostly true"--an evolutionary ornithologist at Yale named Richard Prum did indeed snare nearly $400,000 from the National Science Foundtion to study duck mating.
But if you read the item, I think you'll conclude with me that the whole matter is rather fascinating and just self-evidently deserving of human study:
Here, in Prum’s words, is what he studied and learned:
Over the weekend I read this magnificent article by Haley Sweetland Edwards of The Washington Monthly on the Dodd-Frank rule-writing process. See, when legislation is written, lots of the language isn't specific. It then goes over to the people who work in the various regulating agencies to write the rules. Once upon a time this wasn't contentious. But nowadays, this phase is as contested as the writing phase, and the banks are spending billions fighting the regs tooth and nail--with far fewer journalists watching.
They're even suing. In 2011, two financial industriy groups sued the SEC over one particular rule on the grounds that the SEC conducted a faulty cost-benefit analysis. The case got assigned to three right-wing judges on the DC Circuit (which raises a whole 'nother problem, which is that there are three vacancies on the DC Circuit and the Senate Republicans won't let Obama fill them; read this piece and you'll know why). The industry won.
And on and on and on. It's a long article, maybe 6,000 words across 10 pages, but on every page there's at least one "Holy crap, how in the hell can they get away with that?" From her opening vignette, about an industry challenge to a rule on the basis of the existence in the statute of the phrase "as appropriate":
The words “as appropriate” have appeared in statutes governing the CFTC’s authority to implement position limits for at least forty years without challenge. In fact, the CFTC used the authority of that exact line, complete with its “as appropriate,” to establish position limits on grain commodities decades ago. Even those who drafted Dodd-Frank later weighed in, saying they had intended for the language to explicitly instruct the CFTC to establish position limits at levels that were appropriate. The summary of Dodd-Frank, drafted by the Congressional Research Service, doesn’t quibble either: “Sec. 737 Directs the CFTC to establish position limits,” it reads. No ifs, ands, or “as appropriate”s.
Michael Tomasky rebuts the GOP’s three fiscal lies and calls on Democrats to do the same.
As we immerse ourselves in March Madness this weekend, a thought experiment for you: imagine that a majority of Americans were under the impression that the team that committed fewer fouls won the game. After all, not committing fouls is a good, even salutary, thing. It demonstrates self-discipline. It gives the other team fewer opportunities for what are literally called “free” throws. The propensity not to foul reflects a house in order, a group that plays by the rules, a team rich in inner—nay, even moral—strength. That is all self-evidently preposterous, of course. But it is exactly how we talk about the budget in Washington, such talk being driven by a Republican Party that is way out of the mainstream, saddled with near all-time-low approval ratings, and desperate for a campaign issue with which they can hold on to the House in 2014. How can the public be educated not to buy this nonsense?
Dick Cheney, David Cameron, Paul Ryan. (Chip Somodevilla/Getty, Nick Ansel/WPA Pool/Getty, J. Scott Applewhite/AP)
Dick Cheney went a little overboard (as he was wont to do) when he said “deficits don’t matter,” and of course it was quite a hoot coming from a member of the party that has been haranguing us about deficits for half a century now whenever it suited their purposes to do so. But as hypocritical as he was being, he had a point. Today the GOP has completely flipped on this point and is cynically hyping three fictions that will harm the economy—but (maybe) help them electorally.
The first is this canard that we have to balance the budget. Absurd. There is no reason to balance the budget. None. Ever. Oh, it’s nice if it happens—that is, if it happens as a result of an economy that’s shooting skyward like a bottle rocket, as Bill Clinton’s was. That’s something to feel good about. It was an astonishing accomplishment for Clinton, that he brought us into surplus for that brief golden age before George W. Bush and his advisers, those secret agents of world communism, started destroying American capitalism.
The Daily Beast's Michelle Cottle joined MSNBC to discuss the annual event where conservatives 'come out and let their hair down' and the tension among right-wingers over gay rights.
Under a sudden avalanche of criticism, CIA director John Brennan said President Obama can ‘ask me to go.’ Will he?