Impolite Company

"Obama Joins the Cover-Up"

Dan Froomkin wrote yesterday in Obama Joins the Cover Up:

President Obama's about-face on the release of more photos depicting detainee abuse is a colossal mistake.

My tendency is to disagree with this perspective and I imagine it's a perspective that is shared by a lot of people who were against the war and the abuse of detainees in Iraq and the torture of suspected terrorists in Guantanamo.  By releasing the memos that served as the intellectual and apologetic framework of these abuses, Pres. Obama made clear the extent of such treatment of individuals in US custody and the official sanction of the treatment.  I think it's appropriate for the courts to decide this question--I think their release could have negative global effects and it's exactly the sort of question that the courts should address.  We know what the abuse looked like thanks to the eariler pictures and I'm not sure that a fresh collection of photos will meaningfully increase our knowledge but they will definitely up the emotional ante, at least in the short term.

There's gonna be a lot of squawking on the left over this one but I think it's a judgment call and, as much as I have an opinion, I'm tending to agree with the president.

Here's the ACLU's release on the Obama reversal:  Obama Administration Reverses Decision to Release Torture Photos.

And you can get more info on the ACLU's FOIA lawsuit here:  Torture Documents Released Under FOIA

Majority Doesn't Care About Minorities on High Court

The LA Times has an article out today that discusses the results of a recent Gallup poll that shows that a majority of Americans don't care if there is minority representation on the Supreme Court, Americans Not Concerned With Diversity On Supreme Court, Poll Says:

There is but one woman on the nine-member Supreme Court, in a nation where women outnumber men at polling places; one black justice, in a nation that shed legalized racial discrimination only decades ago; and there never has been a Hispanic on the high court, in a nation whose fastest growing minority population is Latino.

Yet, with President Obama weighing his first appointment for the high court and promising to pick a nominee with "diversity of experience," Americans apparently are in no rush to even the score for women or minorities on the court.

The article goes on to discuss opinion on whether we need more women on the court in more detail than the minority question and the results on that question are lower than results in a poll taken soon after Justice O'Connor stepped down from the court. 

It shouldn't be surprising that a majority of people don't think it's that important to represent minorities on the court--you know, they're the minority and they usually get the short end.  The only interesting point I thought the article made was:

Women are more likely than men to call it important that the president nominate a woman for the court. Yet just 38% of the women surveyed by Gallup this month called it essential or a good idea. Among men surveyed, only 24% called it essential or a good idea.

But they didn't dig down into the numbers with minority groups in a similar fashion.  I would be very interested to know what percentage of African Americans and Hispanics think it's essential to have a voice on the Court compared to the overall national numbers.  Somehow, I bet it's a little bit higher than the roughly 26% and 32% discussed in this article.  Further research didn't show any articles addressing a greater breakdown of the numbers--I'll keep an eye out for Nate Silver addressing this.

Civil Rights and Firefighters at the Supreme Court

There are a number of cases that touch on civil rights before the Supreme Court in the near future, from one involving white firefighters claiming they were discriminated against in promotion decision-making to a Voting Rights Act case.  Implicit in the cases is the question of whether the state needs to continue to take special steps to make sure that members of minority groups are able to compete without being discriminated against, because, you know, we fixed all that.  We have a black president now.  The Washington Post frames the situation well in its article, High Court Poised to Closely Weigh Civil Rights Laws:

The court will hear the arguments, along with the others, in the midst of an evolving national conversation about the role of race and diversity and in the wake of the historic presidential election.

"Each of these cases goes to the ability of our society to achieve opportunity, fairness and ultimately to our ability to be the democracy that we aspire to be," said John Payton, president and director-counsel of the NAACP Legal Defense and Educational Fund. "We've made tremendous progress as a society, and some of that progress is having in place anti-discriminatory" laws to ensure it continues.

His organization calls for the court in each case to affirm a vigorous role for government in recognizing the need for race-conscious vigilance.

But Edward Blum, a visiting fellow at the American Enterprise Institute, envisions a chance for the court to acknowledge the strides that the country has made, even if it decides each case narrowly.

The Post article looks the closest at the firefighter's case, in which a group of white firefighters are suing the City of New Haven for throwing out a a performance test that promotions were supposed to be based on because none of the twenty-seven African Americans taking the test scored above the promotion threshold.  The City has argued (and won) in the lower courts that under current law they cannot use evaluations that show a disparate impact against a minority group in making personnel decisions.  The firefighters argue that this is discrimination.  Who's right?

Trial Set for Court of Criminal Appeals Judge Keller

Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals, who refused to give convicted murderer Michael Richard more time to submit a last minute appeal based on a Supreme Court decision the morning of his execution, will have her own day in court in August.  I posted on this a while back and there are two main foci of the charges against Keller, Texas Execution Ethics:

Keller's unilateral refusal ignored Court of Criminal Appeals rules on death row appeals and, according to charges filed Thursday by the State Commission on Judicial Conduct, violated ethics rules by:

• Failing to ensure proper access to the legal system.

• Eroding public confidence in the fairness of judges.

According to the Statesman this morning, Keller Trial to Begin in Mid-August:

Keller is the highest-ranking Texas judge to face this kind of trial. Only three have been held in recent years, all involving county justices of the peace.

As early as today, the Texas Supreme Court will appoint a judge to act as special master to run the trial and issue recommendations to the judicial conduct commission, a 13-member panel composed of six judges appointed by the state Supreme Court, five citizen members named by Gov. Rick Perry, and two lawyers appointed by the State Bar of Texas.

Commissioners can vote to dismiss the charges, publicly reprimand Keller or recommend that she be removed from office.

Adam, Eve, Steve, Iowa and Texas

While Iowa has taken one of those awe-inspiring steps in the fight to recognize that gays and lesbians deserve equal protection under the law, Texas politicians continue to remind us why the Lawrence v. Texas case in which the Supreme Court overturned sodomy laws originated in Texas.  Capitol Annex has posted some heart-warming video of US Congressman Louie Gohmert from Tyler, TX making some tired and specious historical assertions that are lacking in proof of causation about societies that accept same-sex relationships going belly up. 

Who's Gohmert?  And why am I tempted to pronounce his name "Gomer"?  This is what Capitol Annex has to say about him, Gohmert Says Iowa Gay Marriage Decision Signals Downfall of American Civilization:

Gohmert, a former state district judge in Smith County, is well-known in Texas as a staunch ultraconservative. Among his most recent antics was a bill to relocate detainees held at Guantanamo Bay, Cuba to the lawn of the U.S. Supreme Court building in Washington, D.C. Gohmert introduced the legislation in response to a ruling by the high court that Guitmo detainees were protected by the United States Constitution.

Iowa Court Strikes Down Same-sex Marriage Ban! (Updated)

Wow, I just saw this headline on MSNBC and will post as information becomes available.  I haven't been following the cases closely lately but this is really out of the blue for me.  Iowa!  The Iowa Supreme Court website is swamped and so I've taken the liberty to post the following two PDF's for you:

Summary of the Opinion:  Download 40209Varnumsummary

Full Opinion of the Court:  Download Varnum v. Brien 

We are firmly convinced the exclusion of gay and lesbian
people from the institution of civil marriage does not substantially
further any important governmental objective. The legislature has
excluded a historically disfavored class of persons from a
supremely important civil institution without a constitutionally
sufficient justification. There is no material fact, genuinely in
dispute, that can affect this determination.

We have a constitutional duty to ensure equal protection of
the law. Faithfulness to that duty requires us to hold Iowa’s
marriage statute, Iowa Code section 595.2, violates the Iowa
Constitution. To decide otherwise would be an abdication of our
constitutional duty. If gay and lesbian people must submit to
different treatment without an exceedingly persuasive justification,
they are deprived of the benefits of the principle of equal protection
upon which the rule of law is founded. Iowa Code section 595.2
denies gay and lesbian people the equal protection of the law
promised by the Iowa Constitution.

If you want in-depth information about the case, including briefs, time lines, summaries and the lower court decision, go to Lambda's page on the case, Varnum v. Brien.

Sen. Stevens to Walk

The prosecution against former Sen. Ted Stevens was a mess of misconduct and incompetence and it appears that US Attorney General Eric Holder has decided to drop the prosecution rather than try to clean up yet another train wreck left behind by the Bush Administration.  There may be some howls from the left but I think it's the right decision--he's an old man, he's out of the Senate and the prosecution screwed this up so royally that unpacking it and piecing it all back together might just be impossible.  I'll update this if I see anything interesting come up the pike.  NPR broke the story this morning, Sources:  Ex-Sen. Stevens' Conviction to be Voided:

The judge in the Stevens case has repeatedly delayed sentencing and criticized trial prosecutors for what he's called prosecutorial misconduct. At one point, prosecutors were held in contempt. Things got so bad that the Justice Department finally replaced the trial team, including top-ranking officials in the office of public integrity. That's the department's section charged with prosecuting public corruption cases...Holder's decision is said to be based on Stevens' age — he's 85 — and because Stevens is no longer in the Senate. Perhaps most importantly, Justice Department officials say Holder wants to send a message to prosecutors throughout the department that actions he regards as misconduct will not be tolerated.

Justices for Sale and the Supreme Court

I recently wrote an extended post on a couple of issues facing the Texas judicial system and one of them related to a case before the US Supreme Court that was heard yesterday, Caperton v. Massey.  In case you forgot, Caperton is a challenge based on alleged bias by a West Virginia Supreme Court Justice who didn't recuse himself in a case wherein he had received huge political contributions from one of the plaintiffs.  Oh, and the plaintiff specifically supported the justice in order to shift the balance of opinion on the court in his favor. 

You can listen to NPR correspondent Nina Totenberg's excellent reporting on the story here:  High Court Weighs Judicial Ethics.

And if you're a really curious type you can read the transcript from the oral arguments before the court here:  Caperton v. Massey.

Krugman and Me

One of my favorite commenters (this still isn't a word according to the spell checker, but it doesn't come up with a reasonable alternative and so I will snub its overly conservative lexicon) around here has frequently bemoaned my affinity for all things Krugman and, though I've pointed out that I'm not a huge fan of Krugman's more political efforts, he's mainly correct.  I'm comfortable with his economics, he explains them well for the layperson and so I'll continue to rely on him.  Although lately I've hesitated to go to him extensively because he's been rather blunt in his assessment of the stimulus and bailout packages and I didn't want to stir that pot until I'd gotten a little space from the various announcements and thought about things some more. 

Well, I've thought about it some more and I think today is as good a day as any to give voice to both barrels of Krugman, one barrel aimed at the overly tentative European leadership and the other barrel for our friends in DC in the Obama Administration.  The Krugman post is Failing the Test, and here's hopefully enough to tempt you into reading it for yourself:

It’s a depressing spectacle: on both sides of the Atlantic, policy-makers just keep falling short — and the odds that this slump really will turn into Great Depression II keep rising.

In Europe, leaders rejected pleas for a comprehensive rescue plan for troubled East European economies, promising instead to provide “case-by-case” support. That means a slow dribble of funds, with no chance of reversing the downward spiral...On this side of the Atlantic, Tim Geithner seems committed to the view that banks should stay private even if they’re bankrupt, because — well, just because.

Supreme Court Affirms Domestic Violence Gun Law

If you hit your wife or your girlfriend and get convicted for it, you cannot buy a gun.  That's the law passed by Congress back in 1996 as part of an update to the 1968 Gun Control Act that extended the general ban keeping felons from owning guns to those who have committed misdemeanor domestic violence or a misdemeanor assault against a person they are in a relationship with.  A challenge was before the Supreme Court saying that the law really required the offense to specifically be a domestic violence offense, one identified as such, and couldn't apply to garden variety assault, even if it was against your wife, your husband or your significant other.  The Supreme Court denied the challenge (United States v. Hayes) in an opinion relying a lot on proper reading of legislation and the technicalities of doing so--it's not an opinion that sings, one that eloquently defends rights or protects civil liberties.  But it's an important decision--folks who are abusive to their spouses or significant others shouldn't have access to guns that can up the level of terror in their abuse.  The Washington Post has more of an analysis here:  Justices Uphold Ban on Guns for Abusers.

In a week when Justice Ginsburg returned to the bench after surgery two weeks ago and made a glorious entrance at Pres. Obama's speech to the Joint Session last night, it was fitting that her opinion in this case would be released.

Texas Execution Ethics

Quick update:  Here's a link to a Texas Kaos post on this subject, including a copy of the announcement of the charges filed against Judge Keller to the author:  Formal Proceedings Against Sharon Keller.

I recently wrote about the impeachment resolution filed to start an investigation into Presiding Judge Keller of the Criminal Courts of Appeal in Texas Courts:  Good News and Bad News.   In addition to the possibility of an impeachment proceeding, the State Commission on Judicial Conduct has filed ethics charges against her for failing to follow the procedural rules of the CCA.  The CCA operates on a system of rotating duty judges, whereby the on duty judge is responsible to consider any last minute appeals, such as in the execution of Michael Richard, the case at the center of the Keller controversy (Richard was appealing based on Supreme Court review of lethal injection, which froze executions nationwide for several months until they ruled on the case).  Rather than referring the decision to the duty judge, Judge Cheryl Johnson, Judge Keller made the decision herself.  You can get more detail on the story at the Austin American Statesman's Judge's Ethics Case May Hinge on Phone Calls:

Keller's unilateral refusal ignored Court of Criminal Appeals rules on death row appeals and, according to charges filed Thursday by the State Commission on Judicial Conduct, violated ethics rules by:

• Failing to ensure proper access to the legal system.

• Eroding public confidence in the fairness of judges.

Beyond revealing dysfunction within the normally secretive nine-member court, the charges contained previously unknown information about events leading to Richard's execution on Sept. 25, 2007 — including details of the two key phone conversations involving Keller.

Tough Indictment of the Jury System and Evidence

In a post that is part justified rant and part reasonable deconstruction of what's wrong with our jury system and the way we present evidence for them to consider and the standards of certitude we expect them to reach, DrugMonkey has written a post that you should read.  Even if you're not involved in the civil or criminal justice system, these are good things to think about.  Are we trying to make decisions based on evidence or based on emotive persuasion?  Is "beyond a reasonable doubt" a meaningful burden of proof to use?  What about all that fancy science stuff in the courtroom that we see on the TV?  If this catches your eye, you should read Why Scientists Hate Jury Duty:  A Ray of Hope from the NAS:

Here's the first thing that offends my sensibilities as a scientist person with at least a half a brain. There are two reference instructions about evidence that are particularly important. By the preponderance of the evidence and beyond a reasonable doubt. Scientists will recognize the former. It is our stock and trade. We draw tentative conclusions about the state of nature based on the currently available evidence. When evidence is in conflict, we attempt a thinking-person's synthesis of the evidence to estimate the most likely truth of the matter.

Scientists do not recognize "beyond a reasonable doubt".

This standard is foreign to us. So when faced with an instruction from the judge, we are being asked to be even more strict than we are in daily professional life! Even if we accept the "reasonable doubt" standard as being hyperbolic and meant for a lay audience, it should at the very least be a standard that is as strong as our scientific standard, right? Otherwise what does it mean?

Texas Courts: Good News and Bad News

In the past week I've run across two stories about the top judges on Texas's two highest courts--one made me feel hopeful that things might get better and the other reminded me of the sort of legacy that any progress has to overcome.   The hopeful story came from the Chief Justice of the Texas Supreme Court saying that we need to reconsider our system of electing judges in Texas.  The distressing one came out of the Court of Criminal Appeals, related to the execution of a prisoner back in 2007.

But first, a word about the Texas court system--it has its quirks.  Unlike the federal system where the US Supreme Court reviews all cases, whether they are criminal or civil, the Texas system is bifurcated with criminal appeals going up to the Court of Criminal Appeals and the civil cases going to the Texas Supreme Court.  The other big one is that we elect our judges.  Neither of these points are all that unique but you need to know that going forward.

North Dakota House Passes Unconstitutional Law Banning Abortion

The law according to Roe v. Wade and as modified by the later Casey decision stipulates that the states cannot create an undue burden preventing a woman from exercising her right to choose an abortion.  The ruling language actually comes from the Planned Parenthood v. Casey, which gave the states more latitude to regulate abortion than Roe allowed them.  Here's the language from Casey (an incredibly convoluted ruling with pluralities and partial opinions, no consensus compared to the 7-2 ruling in Roe):

To protect the central right recognized by Roe while at the same time accommodating the State's profound interest in potential life, see id., at 162, the undue burden standard should be employed. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.

 According to a story on MSNBC, Anti-abortion Measure Says Fertilized Egg is Human:

A bill approved by the North Dakota House says a fertilized human egg has all the rights of a human being.

The legislation would have the effect of banning abortion in North Dakota.

Changing the law so that a fertilized egg has all the rights of a human being, effectively making abortion murder, creates a substantial legal burden preventing a woman from seeking an abortion and is therefore unconstitutional according to the standard created by Justice O'Connor.  We'll see if the ND Senate agrees that it's worth wasting money on a pointless legal battle.

Supreme Court Justice Ruth Bader Ginsburg

This is not a valedictory remembrance of Justice Ginsburg but a celebration of what she's accomplished so far with hopes that she will recover from her pancreatic cancer surgery and return to the bench.  It's unconscionable that we only have one woman sitting on the Supreme Court but if we're only going to have one, Justice Ginsburg is a good one to have. 

Here's an excerpt from a biographical sketch of her over at Oyez, U.S. Supreme Court Media:

We have found a witch, might we burn her?

(The above title quote was ruthlessly copied and pasted from the unofficial script of Monty Python and the Holy Grail)

This is an old story that Pharyngula apparently posted as current by accident.  Or not.  It's still amusing and sad to think that his happened as recently as 1999--the girl lost the lawsuit and her family was left in somewhat dire straits when they were told to pay $6000 in court costs.  A Lifetime TV movie was made about the situation, called Not Like Everyone Else., (no, not The Craft).  And here's the recent post about it Going Back to Our Puritan Roots:

The ACLU is suing Union Public School Independent District No. 9 of Oklahoma. The reason is bizarre: administrators at the school have harrassed and violated the civil rights of a young woman named Brandi Blackbear because — and I'm a bit ashamed to admit this can go on in my country — they accused her of witchcraft. They say she used a magic spell to make one of her teachers sick. In retaliation, she has been subjected to searches and public humiliation, and the school has banned the wearing of non-Christian paraphernalia.

And, more importantly, I won't run from the truth any longer.  I love me some Python (4:15):

The Lilly Ledbetter Fair Pay Restoration Act

It's signed and it's going into the books--the full measure of protection intended under the law for those who face pay discrimination at their workplace based on their gender.  When we have a Supreme Court that interprets the law with the tightest constraints possible, it's the responsibility of the legislature to define the parameters in an appropriate manner with no room for judicial interpretation.  Our system is set up with some protections that are enforced by the executive branch but when that fails, people need that door to the courthouse to be opened wide in order to get the protection they deserve. 

I know I'm turning into a shill for the Obama Administration but I just find it exciting when my government does something good that I agree with (around ten minutes):

President Obama signs the Lilly Ledbetter Fair Pair Act from White House on Vimeo.

DOMA vs. The Constitution (updated with more analysis)

It's on, the constitutional battle royale, the national Defense of Marriage Act and the Texas State constitutional amendment barring gay marriage v. the Full Faith and Credit Clause of the U.S. Constitution.  I'm not going to go into a great deal of detail, just sketch out the situation.  A gay couple up in Dallas filed for divorce from each other--they were married in Massachusetts.  As it says in that article, Greg Abbott, the Texas Attorney General, doesn't think that they should be allowed to do so because of the Texas Constitutional Amendment that bans gay marriage in the state of Texas and the national DOMA that says states don't have to recognize same-sex marriages from other states.  And other folks are setting it up as a US Constitutional quesiton because traditionally states are reuqired to recognize marriages from other states.

The Mexico City Policy and Fungibility

(The text of Pres. Obama's Executive Order reversing the Mexico City Policy is at the end of this post)

When a Republican enters the White House the Mexico City Policy controls foreign aid and the US cannot provide aid to NGO's that provide abortion services or give abortion referrals.  When a Democrat becomes president, that rule gets reversed.  We've had this game of policy ping pong since Ronald Reagan started it back in 1984 and now that Pres. Obama is in charge the Policy has once again been overturned.  And, not surprisingly, I'm hearing and reading a lot of misinformation about what the Mexico City Policy does and what is the rule when it doesn't apply.

In short:  repeal of the Mexico City Policy does not allow the US government to fund abortion or abortion referral.  Such funding is banned under the Foreign Assistance Act of 1961.  What MCP does is it forbids any international funding to go to an NGO that has anything to do with abortion, even if those funds would be used for something other than the abortion-related program.  As an example, only 3% of Planned Parenthood's health services operations in the United States are related to abortion (Annual Report:  2006-2007).  If the MCP applied in the US, then the feds couldn't fund any of Planned Parenthood's other operations, such as its cancer screening, contraception services or women's health services.

Detailed Discussion on "The Risks of Releasing Detainees"

The New York Times has a series of comments by five different experts from differing perspectives on the risks involved in shutting Guantanamo down and also those that would exist if we kept that facility open.  It's a fairly long piece and so I won't reproduce any of it here, just give you the opening and their list of experts in, The Risks of Releasing Detainees--Room for Debate Blog:

The case reflects the difficult choices the administration will face in carrying out the executive order President Obama signed on Thursday to shut down the detention center within a year. We asked these experts — several of whom were in earlier discussions on the legal challenges of closing Guantánamo and on the effects that torture charges have on its closing — for their response to this case.

• Benjamin Wittes, senior fellow at the Brookings Institution
• Andrew McCarthy, legal affairs editor at National Review
• David Cole, professor at Georgetown University Law Center
• Deborah Colson, Human Rights First
• Glenn Sulmasy, law professor at U.S. Coast Guard Academy