Author Archives: Tin Man

SCOTUS: No Cameras in Prop 8 Trial

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“Irreparable harm.”

Nobody expected the U.S. Supreme Court to get involved in the Prop 8 case so soon, but a couple of hours ago, the Court issued an order preventing the broadcast of the Prop 8 trial to five federal courthouses across the country after being asked to do so a few days ago by the pro-Prop 8 lawyers. The order doesn’t address whether the trial can be broadcast on the internet, because that issue is still being worked out at the lower level (“the technical staff encountered some unexpected difficulties preparing a satisfactory video suitable for on-line posting”).

This whole case has so many people on edge — me included — that anything the Supreme Court says about it, even on a supposedly tangential issue like cameras in the courtroom, is being given talmudic scrutiny.

What worries me is the makeup of the justices in this decision. It just so happens that the five justices who voted to bar cameras in this case — and therefore agreed with the pro-Prop 8 lawyers — are Roberts, Scalia, Thomas, Alito, and Kennedy, and that the four justices who dissented are Stevens, Ginsburg, Breyer, and Sotomayor. This is exactly the lineup a decision on the merits could have, with the possible exception of Kennedy.

The thing is, I tend to agree more with the majority here, that the lower court probably didn’t follow proper procedure in allowing cameras in this case. But I could be persuaded that the minority is right as well. This really isn’t an emotionally charged issue — except for the fact that it happens to involve a trial about Prop 8.

And the fact that the trial is about Prop 8 is relevant. The majority opinion, which is unsigned, isn’t just about proper procedure; it also endorses the claims raised by the pro-Prop 8 lawyers that some pro-Prop 8 people have been harrassed, even physically, and says that there could be “irreparable harm” in letting cameras in.

Never mind the fact that we’re not even talking about broadcasting the trial on the internet — we’re just talking about broadcasting the trial in five federal courthouses.

So, is this an attempt to paint pro-gay-rights people as crazy harrassers? What about the people who get gay bashed? What about kids who get driven to suicide because their classmates taunt them for being gay or even just for being effeminate? Granted, the anti-Prop-8 people apparently didn’t bring that up in their arguments. But in citing “irreparable harm,” the majority opinion seems a little too sympathetic to the anti-gay side here. And again, that worries me.

So “irreparable harm” rears its ugly head again. It’s a valid legal concept, and there’s nothing inherently wrong with it. But I can’t help but remember that it came up in Bush v. Gore, too. There, Justice Scalia said — in an example of great chutzpah: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

I really hope this procedural order isn’t a portent of how the case turns out.

Obama Has Me Feeling Down

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For a while I’ve had the idea of writing a post from an alternate universe, where Hillary Clinton is president, and things are going horribly for the Democrats, and we all say, “Darn, if only we’d only elected Obama, things would be going so much better for us!”

I’m feeling down about politics again — Democrat Martha Coakley is in danger of losing her Senate race against Republican Scott Brown, in Massachusetts of all places. If Coakley loses, that leaves only 59 Democrats in the Senate, which means that health care is dead unless the House passes the Senate bill as is. (Or unless both houses get their shit together and vote on a compromise bill already. The Senate passed its bill three weeks ago! What’s taking them so long?)

In the past I’ve blamed Harry Reid for the Democrats’ problems. But I also blame Obama. Things should never have gotten to the point they did last summer, when the “death panel” rumor ran rampant. The New Yorker article on marriage equality that I linked to yesterday has a part that struck me, about Chad Griffin’s experiences working on Bill Clinton’s 1992 campaign:

But the Clinton “war room” remained Griffin’s model of how to make noise in the world. “Every single hour was strategic,” he recalled. “I was this little freakin’ kid hanging around watching Paul Begala and James Carville and George Stephanopoulos. They did not let the opposition gain an inch, and if it did they knocked it down with firepower.”

Can anyone describe the White House efforts at health care reform that way? No.

It’s funny. In 2008, all the anti-Obama people were saying, “Obama’s an idiot, he’s all flash and no substance, all he knows how to do is give a speech.” But in fact, that wasn’t true. I can’t remember where I read this, but there was an article in 2008 saying that Obama as a candidate actually started out really wonky and earthbound and uninspiring, and his campaign managers had to convince him to spice things up a bit, inspire people, use more poetry instead of prose. But now that he’s president, he seems to be just a policy wonk again. Candidate Obama was full of inspiration and hope, but President Obama is just boresville. He’s Calvin Coolidge.

Sometimes lately, I find myself wishing that Hillary Clinton had been elected president. But who’s to say that things would be better if she were in the White House? It’s tempting to say, “Darn, Hillary Clinton would have been a much better president than Obama! She would have kicked ass!” But there’s no way of knowing. She might have turned out to be a bad president: remember her disorganized primary campaign, her wooden speaking ability, the landing-in-Bosnia-under-fire thing. Could she have gotten health care legislation as far along as Obama has? I can just as easily see her overplaying her hand and screwing it up as I can see her intimidating the Republicans and keeping all the Democrats in line.

When we imagine that things would have been better only if things had turned out differently, it’s basically “hope” aimed in a different direction. “Regret” and “hope” are cousins. In each case, we’re imagining some alternative world where things are going much better than they are now: it’s either the future (hope) or an alternate universe (regret).

There are, of course, factors outside of Obama’s control here. If Ted Kennedy hadn’t gotten cancer, there would be no special election in Massachusetts to worry about right now. If tons of white people weren’t racist and xenophobic, there would be no Tea Party movement to deal with. But there’s a lot more Obama could have been doing these last few months other than being idealistic.

Anyway, there is nothing that I, myself, can do to change anything going on in politics right now. So I can continue to follow it and get depressed about it; or I can just ignore it, which isn’t going to happen, because I’m a politics junkie. Finally, there’s the third option, which is that I can continue to follow it and realize that there’s nothing I can do about it so there’s no point in getting depressed about it.

I will probably choose the last one.

New Yorker on Marriage Equality Lawsuit

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The New Yorker has a terrific article by Margaret Talbot on the marriage equality case, Perry v. Schwarzenegger, that began yesterday in San Francisco. It has pretty much everything you need to know about the case from soup to nuts.

I have to admit that while I was very leery of this lawsuit and thought it was a terrible idea, the more I read and think about it the more excited I am. It feels good to be going on the offensive. Ted Olson may be a Dark Lord, but in this case he’s our Dark Lord. By which I mean that he’s a top-notch lawyer, and it’s great that he’s finally using his powers for good. If there’s going to be a marriage equality case before the Supreme Court, we couldn’t have stronger legal representation.

And yes, it’s possible that the case will wind up in the Supreme Court and that we will lose. On our side: Ginsburg, Breyer, hopefully Sotomayor, and hopefully whoever replaces Stevens after he likely retires this summer. On the other side: Scalia, Thomas, Roberts, Alito. In the middle: Anthony Kennedy, who wrote Romer and Lawrence and therefore would seem to be on our side, but you never know, especially since it would be a really big deal for the Court to overturn the laws of 39 states. Some say that if we lose, it will set gay rights back for years. On the other hand, what do we really have to lose? And if not now, when? Roberts, Alito and Thomas are all young, and Scalia could be on the Court for another 10-15 years. The makeup of the Court isn’t going to change in our favor anytime soon.

More importantly, this case is a great teaching moment. From the list of witnesses that Ted Olson and David Boies have put together, it looks like the case will touch on everything from marriage to discrimination to child-rearing to children’s education to so-called “conversion therapy.” Despite the ballot initiatives and the state legislatures that keep going against us, the more we discuss marriage equality, the more the public gets on our side.

On the other hand, if the Supreme Court rules in our favor, it could give fuel to the movement to pass the Federal Marriage Amendment. But you know what? I can’t see 67 U.S. senators voting to enshrine discrimination in the Constitution. And I’m tired of worrying about what our opponents are going to do if we fight for our rights. We’ve been timid for too long. What happens, happens.

Interestingly, there’s another federal marriage equality case going on right now, Gill v. Office of Personnel Management, which seeks not to overturn state laws against marriage equality but rather to overturn part of the Defense of Marriage Act. Gill seeks to force the federal government to recognize same-sex marriages that were validly performed in a state that recognizes them. Normally, if, say, Massachusetts allows a marriage to take place, the federal government doesn’t second-guess Massachusetts and refuse to recognize that marriage. Why should it be any different in the case of same-sex couples? This is what the Gill plaintiffs argue, and in a sense it’s a more palatable case, because it seeks not to overturn state laws but rather to strengthen them. It’s not clear which case will get to the Supreme Court first, Gill or Perry.

In the meantime — still waiting for Obama to stop discharging U.S. soldiers for being gay, and for Congress to repeal Don’t Ask, Don’t Tell.

Damn, I’m tired of waiting.