Archive for October 1, 2008

Joe Biden, Constitutional Scholar; Sarah Palin, Constitutional… Person

Well, it exists. In this segment of Katie Couric’s interview with Sarah Palin, rumored to exist a few days ago, Palin draws a blank when asked, in light of Roe v. Wade, what other Supreme Court decisions she disagrees with. What comes through from the interview, from the question, and from the fact that the question was posed to both Biden and Palin, is that this is not “gotcha journalism,” as Palin & McCain are sure to whine.  It was a fair question, the likely follow-up to any discussion of the nexus between moral values and law.

Sports analogy time: Biden hit it out of the park. Palin hit herself in the head trying to swing the bat.

For the play-by-play (the transcript of Palin’s response, including “ums” and non-sequiturs), hit “read more” at the end of this post. Moving on, though…

Now, the focus of the media response to this question will likely be on Sarah Palin, which is a shame. The more interesting story is the juxtaposition between Sarah Palin & Joe Biden. Setting aside the merits of his answers (whether you agree with Roe and whether you think VAWA should be constitutional), Biden’s explanation of the Roe framework is spot-on. Sure, I’m not exactly sure which clause of the Fourteenth Amendment is the “liberty” clause… but he explained Roe as the compromise that it is, not the extremist “abortion on demand” decision that the right claims it is. Good for him. The “liberal” position on abortion is actually not so very extreme, and it’s high time the public realized that.

Similarly, Biden’s explanation of federalism in the context of the Violence Against Women Act is probably a little highbrow for the average voter (Commerce Clause & all that), but it’s a lot more rational than Palin’s “let the states decide everything” approach to anything controversial. A nation where states decide federal rights isn’t a Constitution; it’s a Facebook group.

The real moment of the night, though, should be Biden’s statement that, in his mind, a right to privacy is firmly grounded in the Constitution. Even after the Bush years, that’s highly controversial stuff, and Biden would be opening himself up for criticism…

…except that Palin agrees! Few conservative politicians – and even fewer members of the hyper-conservative John Birch Society – have ever endorsed a constitutional right to privacy. To a political moderate, this would be a strong point; to Palin’s hyper-conservative base, this is a gaffe, and one that moots a potentially valuable line of attack against Biden.

This little clip leaves me fairly serene for tomorrow night. Since victory seems in the bag, if I were a drinking man (I’m not), I’d probably spend the night enjoying this little game concocted by our friends at “Slander08.” But there is one small note of concern. Joe Biden, obviously, speaks for educated audiences. Palin, on the other hand, speaks of educated audience… as elitist Washington-insider gotcha-journalist biased liberals. Only one of those plays well with the public at large. And it’s not the one you’d like to think. For Biden to win the perception game, he’ll have to be smart(er than Palin), likeable, and accessible. Fingers crossed.

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Greta van Susteren is Wrong (Shock!): In Law, It Would NOT be a Mistrial

In anticipation of a weak performance by Sarah Palin at tomorrow’s vice presidential debate (update on that: she answered questions in gibberish in Alaska, too), the Republican attack dogs are already calling the debate unfair. Talk about proactive! You see, the debate’s moderator, Gwen Ifill, turns out to have written a book supportive of black politicians (including Obama), and Fox’s Greta van Susteren is crying foul.

The GOP’s likely real concern? Ifill has a reputation for asking tough questions. In 2004, she stumped both Dick Cheney and John Edwards. No small feat. If Ifill lives up to that reputation… brace for Palinplosion.

Greta’s choice of anti-Ifill rhetoric merits consideration: according to her, “in law, [a biased moderator] would create a mistrial.” False. If judges had to recuse themselves from deciding cases that implicated their abstracted political interests, no judge would ever sit. While judges and their staff have to maintain an appearance of political neutrality, and undoubtedly must set aside partisan concerns when rendering judgment, there’s no rule that judges cannot be, in their heart of hearts, political. Greta isn’t arguing that Ifill is incapable of setting aside her political opinions: she’s merely stating that Ifill has opinions.

But let’s take Greta’s principle of judicial neutrality, and her low bar for recusal, and apply both to real law. If this is how Greta really feels, where was her firm sense of justice when, after going hunting with Dick Cheney, Justice Scalia refused to take himself off a case that directly implicated the vice president? Empty posturing from an empty mind: another low point for Fox News

That said, it would be a costless gesture for Obama to ask Mrs. Ifill to throw in the towel. If phrased right, it might even be used to make the Republicans look like bullies. Not that they need the help.

SCOTUS Primer for Sarah Palin

According to a rumor circulating yesterday – which I choose to believe until it’s disproven (so sue me!) – Sarah Palin was unable, when interviewed by Katie Couric, to name a Supreme Court decision other than Roe v. Wade… which, by the way, doesn’t count. Everyone’s heard of that one. It’s like saying your hometown team when asked to name a baseball team, or “the Empire State Building” when asked to name a landmark in Manhattan. It proves nothing.

So, as my way of performing a public service to the Republican vice presidential nominee, I’ve decided to do my best to assemble a short list of politically sensitive or momentous Supreme Court decisions. Governor Palin, for your reading pleasure, a few American legal landmarks (by no means an exhaustive list), identified by popular name and supplemented with your likely opinion, in no particular order whatsoever:

• Roe v. Wade: I know, you know this one. But you probably don’t know what it means. It’s not “abortion on demand.” It lets the states or the federal government regulate abortion in the second trimester, and ban it in the third, but constitutionalizes a “right to choose” without interference in the first trimester. I think I know how you feel on this one.
• Planned Parenthood v. Casey: affirmed the Roe right and the “trimester” framework, but phrased permissible regulation in terms of what is or isn’t an “undue burden.” You probably don’t like this one either.
• Gonzales v. Carhart (*recent!*): totally copped out on the scientific analysis and overturned a five-year old case by holding that the federal government can ban “intact dilation & extraction” (partial birth abortion), without regards to effects on a patient’s health, despite medical proof of its necessity to preserve the health of the mother in some cases. You probably like this one: you’re anti-woman and pro-fetus. It’s two for one!
• Brown v. Board of Education: I think you like this one. Dear God, I hope so. Sounded the death knell of race-based discrimination by holding school segregation unconstitutional.
• Loving v. Virginia: you have to at least pretend to like this one too. Finds a constitutional right, on equal protection grounds, to marry whomever you like regardless of race. Of modern relevance because at an abstract enough level, it kind of works for gay marriage. But not really.
• U.S. v. Virginia (the VMI Case): found that gender discrimination in selective, unique, state-run military academies was unconstitutional – a “separate but equal” school was not an effective substitute. You might have to pretend to like this one for the sake of all those Hillary voters, but it’s very controversial in some circles, so if you want to cozy up to Phyllis Schlafly, etc., you don’t like it.
• Lemon v. Kurtzman: ruled that “excessive entanglement” between the state and the church is unconstitutional. It’s a good rule, but you probably don’t like the way it’s applied. That’s the typical far-right talking point, anyways.
• Engel v. Vitale: held that school prayer, in public schools, entangles the state and the church, and is accordingly a violation of the establishment clause (ahem… that’s the part of the First Amendment that says you can’t create a theocracy).  You oppose this. At least, I’d be shocked if you didn’t.
• Edwards v. Aguillard: pursuant to Lemon, ruled that creationism is religion. Based on your latest interview with Katie Couric, you’ve pretended to be okay with this ruling. Try to smile when you say it.
• Hein v. Freedom from Religion Foundation (*recent!*): if you want to sound like a real pro, drop this baby in a conversation. Held that “faith-based initiatives” are de facto constitutional… because a private citizen doesn’t have the right to challenge “FBIs” in federal court. That last part is the key.
• Boumediene v. Bush (*recent!*): BIG deal. Detainees at Guantanamo have a constitutional – not statutory! – right to contest the validity of their detention. Bush opposed it (as you might guess)… McCain said it would kill us all… so, although you have the rest of the civilized world against you on this one, you’re probably against it too.
• D.C. v. Heller (*recent!*): construed the Second Amendment (the one about guns) to say that, regardless of any ties to the militia, there’s a personal constitutional right to own a firearm subject to reasonable & non-disabling restrictions (meaning, you can keep guns away from criminals, but you can’t keep handguns away from law abiding citizens). Try to dance around and fire wildly into the air when talking about how much you like this case.
• Griswold v. Connecticut: states can’t criminalize the sale of contraceptives, because what couples do in their bedroom at night isn’t your business. You’re against it insofar as it’s read to reflect the creation of a constitutional right to privacy.
• Romer v. Evans: if states don’t have to affirmatively protect gay men & women by outlawing discrimination against them, states at least can’t stop their cities from opting to protect gay men & women. Means that politics can’t be about bashing the gays whenever possible, and that gay men & women are, probably, a protected constitutional group in at least some way. You’re probably against this… unless you’re pretending to be moderate & rational today.
• Lawrence v. Texas (*recent!*): states can’t criminalize what people do in their own bedrooms… even if it involves two dudes. Had some language that was very pro-gay rights in it. You’re VERY against it. Especially its implications.

Governor Palin, this list should get you started. Oh – if you want to duplicate Bush, too, you can take a “brave stance” against Scott v. Sanford (Dred Scott’s Case), a horrendously evil case overruled 150 years ago that said that African-Americans aren’t people. No-one likes this case, and everyone agrees it was awful, but for some reason, Bush felt the urge to state his opposition to the case a few years ago, as if he’d just discovered it. Very strange… so if you feel like yelling about things that everybody agrees about (and what Republican doesn’t enjoy that?), this one is your chance.

Et Resurrexit…

Someone check Jerry Falwell’s tomb! Either Mr. Falwell is back among the land of the living or his disciples are following in his noble footsteps, by doing what fundamentalists do best: blaming the gays for anything bad. In a blog post entitled “the nation will right itself if it fixes sex,” the Christian Civil League, at least, has taken up the torch of gay-baiting from the late great one himself, laying blame for the current financial crisis at the feet of sexual “immorality.” Maybe this explains Bush’s criminal negligence of American institutions: it’s not that he doesn’t care. He just has a different way of solving problems.

Sarah Palin’s Katie Couric Interview: Moving Backwards, by Fits & Starts

No doubt the lion’s share of coverage of Sarah Palin’s interview with Katie Couric will probably go to this delightful clip, where Palin (a journalism major!) can’t name a single newspaper that she reads:

But the full, newly released footage contains enough fodder for a week’s worth of news cycles. Let’s investigate. First and foremost, I concede defeat to those who told me that Sarah Palin’s wingnut creationist beliefs wouldn’t affect her in office. You were right, insofar as she’s promised us they won’t.

Oh, I think [evolution] should be taught as an accepted principle. And, as you know, I say that also as the daughter of a school teacher, a science teacher, who has really instilled in me a respect for science. It should be taught in our schools. And I won’t deny that I see the hand of God in this beautiful creation that is Earth. But that is not part of the state policy or a local curriculum in a school district. Science should be taught it science class.

And, since politicians never renege on promises, and never go from (purely hypothetical example) a “compassionate conservative,” to a theocratic neo-conservative in less than a year, I’m sure we’re safe. All kidding aside, while this seems a little comforting, Palin undoubtedly declined to fully answer the question. By leaving the answer at “science should be taught in science class,” without elaboration, she leaves the door open to “intelligent design,” the whole idea of which is that it looks like science to the untrained/willfully ignorant eye. While I’m a little less concerned, just as Palin continues her watchful vigil on Putin, I’ll still sleep with one eye open.

More disturbingly, though, Palin refused to repudiate the beliefs of a church to which she belongs (the Wasilla Bible Church), whose members recently engaged in a “pray the gay away” event. “Pray the gay away,” of course, is a mild form of “reparative therapy” (the idea that homosexuality can and should be changed), a a theory psychologically disastrous in its application that flows from the confluence of the offensive mischaracterization of homosexuality as a choice, and the insulting belief that gay Americans are inferior to straight Americans. Although Palin’s response to being pushed on the issue is obscured by her ridiculously poor speaking ability, here’s the important part:

I don’t know what prayers are worthy of being prayed. I don’t know what’s [sic] prayers are going to be asked and answered. But as for homosexuality, I am not going to judge Americans and the decisions that they make in their adult personal relationships.

Notably, Palin dodges the main question – whether “pray the gay away” is a good idea, offensive, or what – by indicating her personal respect for gay men & women. That’s nice… but it tells us nothing about her beliefs regarding the offensive practice itself, and nothing about her opinion of gay rights in policy & law. Speaking of policy & law…

What did not air last night is a truly damaging clip that CBS has intimated is in its possession. Allegedly, in the “secret clip,” when asked to discuss the Supreme Court beyond Roe v. Wade, Palin could not name one other Supreme Court decision. Sure, it sounds like a conspiracy theory… but the McCain/Palin camp responded with indignation to the leak. This little trip-up, if true, proves more than anything that Sarah Palin, when asked to be McCain’s running mate, should have probably given her famously glib “thanks, but no thanks” line… or should at least have blinked. With the Supreme Court’s composition in the balance, the longevity of the legacies of such leading legal luminaries as Brennan & Warren in doubt, and Robert’s willingingess to question the precedential value of long-settled issues to contend with, it is unforgivable for a federal politician to not have some knowledge of the Supreme Court. You don’t have to be a J.D. – it helps, but despite his odd opinions on the Court, McCain at least knows what he’s talking about – but to not know a thing about the Court, besides a pet issue, is the type of legal illiteracy that’s tolerable in a high school student, unforgivable in any Senator or Congressperson, and shocking in a candidate for the Vice Presidency.

Should this (substantiated) rumor pan out… expect more anger. And a crib sheet for the Governor, should she care to read it.