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Speaking of Courts...

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.

Marriage: Breeders' Cup?

Question of the Day: Elena Kagan

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?

Could Be Worse

What if the Court Punts?

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.

Expecting the Worst

The Anti-Rainbow Warriors

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.

State Of Union

(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.

Yay Science

Yes, We Should Study Duck Penises

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:

We're Doomed

Continuing Assault on Dodd-Frank

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.

Fool Me Thrice

The GOP’s Three Fiscal Lies

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?

Fiscal Lies

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.

I think I'm going to start labeling certain posts WBI, for Wonky But Important. I'll try to make these posts relatively brief, but they'll all elucidate a policy point that I think we all should know in order to have an intelligent conversation.

Our first WBI is built around a March 8 CBO report brought to my attention this morning by Congressman Chris van Hollen--my very own Mongtomery County Md. representative, I am happy to say--finding that half of this year's expected budget deficit of around $800 billion--half!--can be laid at the door of the struggling economy.

In other words: When the economy is revved up, it reduces the deficit, because there are more tax revenues from all those employed people and businesses working to capacity (and, concomitantly, fewer government expenditures--there's no need for stimulus spending or lots of unemployment benefits during a humming economy). They measure this in terms of what they call "automatic stabilizers"--the reductions in revenues and increases in outlays that are the result of the weak economy.

So, the CBO writes:


One Ex-Republican's Beef

My pal Damon Linker was my editor here at the Beast from the time I started until just recently, when he left us (boo hoo) to go back to teaching at Penn. But he still writes a weekly column for The Week every Friday, and today he has this to say about when and why he left the Republican Party:

Alarmed by the transformation on the right and in the magazine's offices, I wrote a lengthy email in October 2002 to a number of my fellow conservatives, explaining why I thought it would be a serious mistake to turn Iraq into the next front in the War on Terror. My reasons had nothing to do with the administration's claims about Saddam Hussein's arsenal of weapons of mass destruction; like all commentators on the right, most independent observers, and large numbers of intelligence agencies around the world, I assumed that Hussein either possessed or was actively working to acquire such weapons. Neither was I overly concerned about worldwide public opinion. I objected to what I judged to be three erroneous assumptions on the part of conservatives inside and outside the Bush administration. 

First, I believed the administration was wrong to claim that Hussein could not be deterred. In fact, he already had been. In the first Gulf War, Hussein refrained from using chemical weapons against our troops on the battlefield and against Israel in his inept Scud-missile attacks on Tel Aviv. Why? Because before the start of the war James Baker and Dick Cheney sent messages through diplomatic channels to the Iraqi dictator, informing him that we would respond to any use of WMD with a nuclear strike. Israel's Defense Minister Moshe Arens made similar threats. And they worked. Yes, Hussein was a brutal dictator, but he could be deterred.

Second, it was foolish to believe (as Paul Wolfowitz and others on the right apparently did) that overthrowing Hussein would lead to the creation of a liberal democracy in Iraq that would, in turn, inspire democratic reforms throughout the Middle East. This view displayed an ignorance of (or, more likely, indifference toward) the competing ethnic and religious forces that prevailed in different regions of Iraq as well as a typically American optimism about the spontaneous capacity of all human beings in all times, places, and cultures for self-government. Rather than inspiring the formation of liberal democracies throughout the region, an Iraqi invasion could very well empower the very forces of radical Islam that the War on Terror rightly aimed to destroy.

The Right Tone?

Obama's Tough Israel Speech

I did not have a chance to watch Obama's speech just now, but I did read through this transcript. It's a tough speech. Pretty blunt. I wouldn't quite say a Hail Mary, because it isn't the fourth quarter, but let's just dispense with the football metaphors and call it a high-risk-seeking-high-reward gambit to ignite the peace process.

This was the toughest graf aimed at the Israelis:

But the Palestinian people’s right to self-determination and justice must also be recognized. Put yourself in their shoes – look at the world through their eyes. It is not fair that a Palestinian child cannot grow up in a state of her own, and lives with the presence of a foreign army that controls the movements of her parents every single day. It is not just when settler violence against Palestinians goes unpunished.  It is not right to prevent Palestinians from farming their lands; to restrict a student’s ability to move around the West Bank; or to displace Palestinian families from their home. Neither occupation nor expulsion is the answer. Just as Israelis built a state in their homeland, Palestinians have a right to be a free people in their own land.

I didn't watch it, as I said, so I don't really know how it was received, and it's a bit early to read lots of reaction. But I think the above is fairly stern.


Empty en la Cabeza

The same day Reince Priebus announced his Latino outreach program, three white Republican senators went after the Latino Labor nominee on racial and ethnic grounds. Michael Tomasky asks: Do they think Latinos are stupid?

Golly but I’m happy to see that the GOP Hispanic outreach is off to such a blazing start. I mean, it was literally the same day Reince Priebus stood up at the National Press Club to warn his party that they have to refrain from saying and doing addle-brained things that alienate Latinos that certain members of the party stepped forward and said and did addle-brained things that alienate Latinos. I refer to events surrounding Thomas Perez, which demonstrate amply that even if they endorse immigration reform, Republicans have many bridges to cross before they even begin to understand what they look like through black and brown people’s eyes.


U.S. President Barack Obama (L) speaks as Assistant Attorney General of Justice Department's civil rights division Thomas Perez (R) listens to his announcement to nominate Perez as the next labor secretary on March 18, 2013 at the East Room of the White House in Washington, DC. (Alex Wong/Getty)

It was Monday, the same day as the release of Priebus’s autopsy report, that Barack Obama officially nominated Perez to be the next Labor secretary. Immediately, Republican senators (all of them white, natch) jumped all over the guy. This in and of itself is about as dog-bites-man as it gets. Republican senators’ (successful) efforts to block and hold Obama nominees of all kinds have become so routine that Obama has in several cases not even tried to nominate people.

But what made this episode worth reflecting on was, of course, the context (of Priebus’s announcement), and what the senators said. Jeff Sessions of Alabama called Perez “the wrong man for the job” citing work Perez had done in Maryland in helping undocumented immigrants as part of a group called Casa de Maryland.

So reports TPM, and I can find no basis on which to disagree. Brian Beutler:

Once the sequestration deadline came and went, President Obama settled in for a long, glacial campaign to persuade individual Republicans to support the sort of deficit reduction he’s been pursuing for two years. But even if that effort ultimately works, it for all intents and purposes is unfolding on its own, delinked from the ongoing sequestration cuts, which were supposed to be the forcing mechanism that scared Republicans straight about the need to increase taxes.

Instead, sequestration will continue for at least as long as it takes lawmakers and Obama to reach a budget agreement — if such an agreement is possible...

...Republicans, by contrast, have become emboldened. On Tuesday, House Speaker John Boehner signaled that Republicans will not only set future appropriations at sequestration levels, but that they’d attempt to take even more money out of domestic programs and use it to increase national defense — the only category of spending they’ve attempted to shield from dramatic budget cuts.

More Laughter and Forgetting

How Richard Perle Sleeps at Night

Renee Montagne just did an interview with Richard Perle on NPR a bit ago. I wouldn't say it was the world's toughest interview. She put on that anguished-NPR voice. You know the one. It's reserved for interviews with certain categories of penitents, from ex-bigots who've seen the light to war criminals.

But she did haul some illuminating language out of him all the same. She asked one excellent question. He'd been banging on about all the intelligence agencies around the world that thought Saddam had chemical weapons. Then she asked, but as we now know, it turns out that he wasn't trying to deceive the United States into thinking he didn't have such weapons; instead he was trying to deceive local actors (Iran, Kurds) into thinking that he did have them. Isn't it rather a large error not to have seen that?

Perle acknowledged the point: "I am sorry to say I did not achieve that insight."

Achieve that insight! Oh well. That's how it goes. Win some lose some, what's the big deal?

What Is It Good For? Absolutely Everything!

Because It'll Be Different This Time

I often these people do this kind of thing just to get under our skin. Here's Lindsey Graham, speaking on the 10th anniversary of the start of the Iraq War, speaking to Foreign Policy magazine:

Graham told The Cable in an interview Tuesday that whether or not the attack can be confirmed as the first use of chemical weapons in the 24-month Syrian civil war, the United States must devise and implement a plan to secure Syrian chemical weapons sites and deploy U.S. troops to do it if necessary.

"My biggest fear beyond an Iranian nuclear weapons capability is the chemical weapons in Syria falling in the hands of extremists and Americans need to lead on this issue. We need to come up with a plan to secure these weapons sites, either in conjunction with our partners [or] if nothing else by ourselves," Graham said.

Asked if he would support sending U.S. troops inside Syria for the mission, Graham said yes.

Double-Dog Dare Him!

Four Things Reince Priebus Could Say That Would Matter

1. There is no "problem" of voter fraud or integrity in this country. It's a canard--cover for trying to prevent black and brown people from voting. I hereby call on all Republicans involved in any voter suppression efforts to cease and desist immediately. Instead of trying to stop black and brown people from voting, we ought to be fighting for their votes.

2. The so-called 47 percent are hard-working people, some of the hardest working people in the country. I don't believe there is a so-called moocher class. I don't believe there are freeloaders. Republicans should stop thinking this way.

3. Gay love is the same as straight love. Gay people don't decide to be gay. They just are gay. And they love the same way straight people do. Whatever their positions on marriage, Republicans have to accept this.

4. Democrats and liberals aren't our enemy. They are our opponents, but they aren't our enemy. They love America as much as we do. We really have to ratchet down this rage.

About the Author

Author headshot

Michael Tomasky

The Daily Beast special correspondent Michael Tomasky is also editor of Democracy: A Journal of Ideas.

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