the Odd Couple: Olson and Boies

I received this warm and fuzzzy e-mail about gay marriage coming to DC. I’m happy about the outcome. My problem is that the “aw shucks” POV is unlikely to convince anyone who is not already inclined to agree with the position.

What I believe will be more compelling is for people to watch the broadcast and/or read the transcript of Bill Moyers Journal for February 26, 2010. The legal adversaries in 2000’s Bush v. Gore Supreme Court case — Theodore Olson and David Boies, “one conservative and one liberal — have teamed up to make the constitutional case for same-sex marriage.” And the point that is made repeatedly is that their support is based on the rule of law.

The two lawyers are mounting “a well-financed legal challenge to Proposition 8, California’s 2008 ballot initiative that put an end to same-sex marriage in that state. The case could make it as far as the Supreme Court and define the debate on same-sex marriage for years to come.”

“The case they’ve brought, Perry et al v. Schwarzenegger et al, has created a major stir, with some advocates of same-sex marriage worried that they are bringing the case too soon, that a loss at the Supreme Court could set back the movement for same-sex marriage by years. Olson argues that waiting for civil rights is not an option:

In the first place, someone was going to challenge Proposition 8 in California. Some lawyer, representing two people, was going to bring this challenge. We felt that if a challenge was going to be brought, it should be brought with a well-financed, capable effort, by people who knew what they were doing in the courts. Secondly, when people said, ‘Maybe you should be waiting. Maybe you should wait until there’s more popular support.’ Our answer to that was, ‘Well, when is that going to happen? How long do you want people to wait? How long do you want people to be deprived of their Constitutional rights in California?’

Earlier, to this basic point:
TED OLSON:… People told Martin Luther King, “Don’t do it. The people aren’t ready.” And Martin Luther King responded, “I can’t wait. I’m not going to make people wait.” And when people told Martin Luther King, “You may lose.” He said, “The battles for civil rights are won ultimately by people fighting for civil rights.”

And one more thing. When the Supreme Court had made the decision in Loving versus Virginia in 1967, striking down the laws of 17 states that prohibited interracial marriage, now it’s only what? 40 years later? 40 years later we think that’s inconceivable that Virginia or some other state could prohibit interracial marriage. It’s inconceivable. Public sometimes follows the opinions of the Supreme Court, reads the opinion and says, “My gosh, thank goodness for the Supreme Court. We realize how wrong that was.”

(I’ve written about Loving vs. Virginia, which I too find analogous to the gay marriage issue.)

Perhaps it is my liberal bias, but I found the statements of the conservative Olson the most compelling:

TED OLSON: We’re not advocating any recognition of a new right. The right to marry is in the Constitution. The Supreme Court’s recognized that over and over again. We’re talking about whether two individuals who will be — should be treated equally, under the equal protection clause of the Constitution. The same thing that the Supreme Court did in 1967, which recognized the Constitutional rights of people of different races to marry.

At that point, in 1967, 17 states prohibited persons from a different race of marrying one another. The Supreme Court, at that point, unanimously didn’t create a new right, the right was the right to marry; the Supreme Court said the discrimination on the basis of race in that instance was unconstitutional.

Or this exchange:

BILL MOYERS: So, you’re both comfortable invalidating seven million votes in California [who voted for Prop 8]?

TED OLSON: Well, this happens when the voters decide to violate someone’s constitutional rights. David mentioned that we have a Constitution and we have an independent judiciary for the very protection of minorities. Majorities don’t need protection from the courts.

I was particularly fond of this:

BILL MOYERS: But you’re going up not only against the voters of California, the majority, but you’re going up against the Congress of the United States. In the 1990s, Congress passed the Defense of Marriage Act, which actually defined marriage as quote, “a legal union between one man and one woman.” And even declared that states need not recognize the marriages, the same sex marriages of another state. The President signed this. President Bill Clinton signed this. And you want to overturn not only the voters of California, but the Congress and the President of the United States.

TED OLSON:…it often happens that the measures that are passed almost unanimously in Congress, because Congress gets carried away, are overturned by the Supreme Court. And you go back to Members of Congress and you say, “What happened there?” And they’ll say, “Well, we knew it was unconstitutional. We expected the courts to take care of that. We wanted to get reelected. The courts are the ones that come back and help us.”

One of the fascinating aspects of the trial, which began in January, is that one could not watch the proceedings, unless one were in the federal courthouse in San Francisco. “(T)wo filmmakers in Los Angeles came up with an ingenious alternative. Using the trial transcripts and other reporting, plus a cast of professional actors, they turned the case into a TV courtroom drama. Every day of the proceedings has been reenacted on their website, Marriagetrial.com.

So watch/read this piece. You may be convinced, despite your conservative leanings, theological objections, or other issues that, as a matter of long-standing American law and jurisprudence, marriage is a fundamental right, and therefore must include gay marriage as well.
ROG

I would Have Voted For Harold Ford


I was mildly disappointed that Harold Ford, Jr., the former Tennessee congressman, has decided this week not to run in the Democratic primary against US Senator Kirsten Gillibrand.

I’m pretty sure I would have voted for him…in 2006, when he ran for US Senator from Tennessee. He was clearly the more moderate choice in his race against Bob Corker. But it he lost, and many folks thought it was in no small part because of some racially tinged commercials.

In 2010, though, he never identified any particular reason to vote for him. He was evasive in his February 14 appearance on Meet the Press concerning his Merrill Lynch bonuses. His reception at the Black and Latino Caucus, based on what I saw =on television, was lackluster at best. He was one of only a handful of Congressional Democrats to vote for a Constitutional amendment banning gay marriage, and his recent conversion supporting gay marriage has been met with a decided lack of enthusiasm. The one thing I would have advised him not to have worried about the carpetbagger charge – everyone else who was so charged (RFK in 1964, James Buckley in 1970 and Hillary Clinton in 2000) not only ran but won.

Whereas Kirsten Gillibrand, who started off as an apparent afterthought of a choice of Governor Paterson, and was thought likely to be primaried from someone on the left, seems to have grown into the role of junior Senator. I watched her during her live video Facebook chat back on February 24, and her command of the issues was very impressive. She was strong in her support of the repeal of Don’t Ask, Don’t Tell, and believes that the process of hearings that had just started would get to that goal. She also adamantly opposes the so-called Defense Of Marriage Act. She was equally forceful on health care, jobs, tax credits, and reproductive rights. She explained that the agricultural committee she serves on deals with financial derivatives, a vestige of a time when farmers used their crops as collateral.

I should say that while Harold Ford Jr. almost always seems slick and polished, Kirsten Gillibrand trying to read the questions that scrolled by too fast was a bit comical. Still, had Ford actually decided to run, I think Gillibrand would have cleaned his clock. We’ll never know, of course. And with the primary falling so late, in September, it does avoid the internecine warfare that the Democrats are known for, thus giving them a better chance to hold onto the seat.

But that race would have been FUN.

ROG

February Ramblin’

So much going on, and so little time:

COMICS
AdAge has a 3-minute daily video. The topic on February 20: Could Kindle put the KABOOM on Comic Books? (February 26 discusses the Tropicana packaging debacle.)
But not all is bad in comic book land. Marvel, bucking economic trends, actually set a revenue record for 2008.

Comic book blogger Mark Evanier linked to a CBS tribute, which I found oddly moving. I think it’s because when I grew up in Binghamton, NY, there was only one VHF station, WNBF, Channel 12, so it was the Andy Griffiths and Lucille Balls I’d be watching the most.

OBAMA, POLITICS
Too much snark: Even Gov. Bobby Jindal, whom I suppose I should note was the first Indian-American to give the Republican response to a president’s speech, began with an encomium to the first black president. (Wasn’t Bobby great in “Slumdog Millionaire”?). As though I needed more proof that this woman (blonde, initials AC) is an idiot.

But this was a weird story: Poll Results: Obama, Jesus and Martin Luther King Top List of America’s “Heroes”. “When The Harris Poll asked a crosssection of adult Americans to say whom they admire enough to call their heroes, President Barack Obama was mentioned most often, followed by Jesus Christ and Martin Luther King. Others in the top ten, in descending order, were Ronald Reagan, George W. Bush, Abraham Lincoln, John McCain, John F. Kennedy, Chesley Sullenberger and Mother Teresa. These heroes were named spontaneously. Those surveyed were not shown or read a list of people to choose from. The Harris Poll was conducted online among a sample of 2,634 U.S. adults (aged 18 and over) by Harris Interactive between January 12 and 19, 2009.” I can’t explain why I find this a bit disturbing.

Another story I find puzzling is Will trade: One black Democrat for one Mormon Republican. “Congress appears to be on the verge of granting D.C. actual voting representation in the House. The Senate is expected to pass legislation Thursday or Friday that would expand the House to 437 members, adding one seat for the District and one seat for Utah, where officials say the 2000 Census would have yielded an extra seat if overseas Mormon missionaries had been counted.” Problematic for a couple reasons: 1) two more members of Congress (plus staffs)? Actually, there is a delegaste from DC, so it’d be really one more, but still. 2) I find myserlf in the strict constructionist camp, but I think fair representation for DC, long overdue, will require a Constitutional amendment.

I find that performers on the left who spout political opinions are often more criticize than those on the right, such as Chuck Norris and Ted Nugent, in my experience.

MARIJUANA
Comparing public support for legalizing marijuana to the approval ratings for Rush Limbaugh and various Republican Party leaders, the conservatives lose.
So does this mean we should start legalizing and taxing pot, as some are trying to do in L.A.?

RACE
That chimp cartoon debacle probably would have bothered me more if it hadn’t been in the New York Post. It is just what I expect from the New York Post. What does unsettle me is not the chimp reference per se as much as the DEAD chimp reference.

Eric Holder: America ‘a Nation of Cowards’ on Racial Matters. Arguably true. But will saying that initiate useful discussion? I have my doubts.

BLAME

Time magazine did a story about 25 People to Blame for the Financial Crisis, which is well and good; they all seem to have taken advice from Ayn Rand – selfishness over altruism. But Joe Queenan in the February 14 Wall Street Journal wonders about the national obsession “over the missteps of public figures like Alex Rodriguez” and Michael Phelps with “the American people [working] themselves into such a sustained, unmediated level of fury at once-revered public figures.”

“What they did is certainly wrong, but it isn’t in any way unprecedented, or for that matter, unexpected. It’s not off the charts…No public misdeed is too insignificant to earn our limitless fascination. Actor Joaquin Phoenix caused a stir this week following his appearance on the “Late Show with David Letterman.” His principal offenses: chewing gum and maintaining a generally unresponsive demeanor throughout what proved to be a very painful, unproductive interview… And thus ensued a heated debate about whether Mr. Phoenix was acting, on drugs or just spaced out. Meanwhile, in a nearby solar system, the stock market dropped another 400 points…”

“In light of the fact that we are facing one of the worst economic environments since the Great Depression, and are still in the throes of a global war against faceless, stateless terrorists, Michael Phelps can probably be forgiven for thinking that he could get away with taking a hit off that bong. And Jessica Simpson can probably be forgiven for scarfing down a few Twinkies.”

“What accounts for the shock…? For one, we the public think that we know these people because we see them all the time on TV. Because of this, they root us in the here and now in a way run-of-the-mill white-collar villains do not. They have violated an old-fashioned code of morality that we can all understand in a way we cannot understand a $50 billion Ponzi scheme or the fact that Iceland has put out a ‘Closed for Business’ sign.”

“From the therapeutic perspective, this is vastly superior to ranting about the latest depredations of Wall Street. No matter how much we froth and foam, none of us can lay a glove on imperious figures like John Thain or the haughty fat cats who run the auto industry or the inept regulators who let Mr. Madoff run wild in the first place. These folks all look the same, they all talk the same and the man in the street would have trouble picking any of them out of a police lineup. We don’t really know them and we never will.”

“It’s the human scale of their malfeasance that makes them such inviting targets.” (Mentioned in the headline, though not the article, Octomom.) “Ronald Reagan proved a long time ago that while it was impossible to get the public all riled up because the federal government was throwing away billions of dollars on this or that program, you could get them to blow their stacks by recounting a dubious anecdote about some conscienceless welfare queen on the south side of Chicago who was jobbing the public out of a few grand. This was partly because it was possible to put a human face on the welfare cheater, even if the story was vastly exaggerated, whereas the federal bureaucracy would forever remain vague and amorphous. But it was also because a few thousand bucks here and there was a number the average person could wrap his head around. Unlike, say, $700 billion.”

ROG

Gillibrand and Bruno

Friday was a happening day politically in the Capital District of New York state. On one hand, there was descent. A federal grand jury indicted former state Senate Majority Leader Joseph L. Bruno on felony charges alleging he used his elected position to extract $3.2 million in private consulting fees from clients who sought to use his influence. Joe, who represented an area east of Albany for a number of years has his name on the relatively new minor league ballpark in Troy, among other things. I freely admit to experiencing a bit of schadenfreude over his fall, and it’s based on a connection I’m just not going to get into just now; maybe someday.

The other story was an ascent, one you might have heard about, even out of state or out of country: Gov. David Paterson picked Rep. Kirsten Gillibrand to the U.S. Senate, succeeding Hillary Clinton, who resigned after her confirmation as Secretary of State in the Obama administration. One of the out-of-town headlines read: “Little-known, pro-gun Democrat gets Clinton’s Senate seat.” I thought it was unfairly reductivist, so for the benefit of those of you not the Albany area, a primer.

The Congressional District east and south of Albany, currently the 20th, was gerrymandered to sustain a Republican member of Congress. While the adjoining 20th (where I live) contains the Democratic-leaning cities of Albany, Schenectady and Troy, the vast 20th, largely rural and small towns was a GOP delight. The Congressman there for 20 years was the late Gerald Solomon, who was very conservative. He was succeeded in 1999 by John Sweeney, similarly conservative – he helped George W. Bush in Florida in 2000 – but a bit of a party animal. He was seen as drinking at a college frat house, e.g.

Still, when Kirsten Gillibrand challenged Sweeney in 2006, she was not given much of a chance to defeat him, such was the nature of the district. Then there were allegations of possible spousal abuse in the Sweeney household. This probably sealed the seat for Gillibrand.

The best time to knock off an incumbent is after his or her first term in office. The GOP candidate in 2008 against Kirsten Gillibrand was Sandy Treadwell, who is quite wealthy. I started seeing his ads – it’s the same media market – months before I saw hers. Yet she won the general election with 62% of the vote.

A successful Democrat in a conservative district, who was able to do some meaningful fundraising, became one of the front runners for the Clinton seat. Here’s a dichotomy in the narrative. When Gov. Paterson announced her at the press conference, he said that she was picked because she was best qualified, not because she was a woman or from upstate. Yet Gillibrand’s new Senate colleague, Chuck Schumer of Brooklyn said at that same press conference that it was important that the selection be a woman because there are only 16 women in the Senate. He added that it was also important that the candidate be from upstate, something that hasn’t happened in 38 years, because upstaters can speak better to the needs of upstaters. (I discussed the odd, complicated upstate/downstate tension here.)

Kirsten Gillibrand is no wide-eyed liberal, but she’s no hick. My wife suggested I not write this, but write it I must: she’s no Sarah Palin. She’s descended from political royalty in these parts, She received her first experiences in Albany politics from her grandmother, the legendary “Polly” Noonan. City of Albany politics, because it’s been one party for so long, engenders a certain conservativeness, a complaint about Gillibrand that she attempted to quell.

“I will represent the many diverse views and voices of New York state,” said Gillibrand, adding that she would work with Congresswoman Carolyn McCarthy, a Long Island Democrat who has criticized Gillibrand’s A rating from the National Rifle Association. “I will look for ways to find common ground between upstate and downstate.” On December 7, 1993, McCarthy’s husband Dennis and five others were killed, and her son Kevin and 18 others wounded on a Long Island Railroad commuter train by Colin Ferguson.

The New York Immigration Coalition also suggested now-Senator Gillibrand must reconsider her positions on immigration. During her tenure in the House, Representative Gillibrand took positions on immigration that are deeply troubling, to say the least. She sponsored legislation that sought to require local police officers to take on immigration enforcement duties, even though police chiefs have testified it would impair their ability to protect the public. She strongly supported throwing more resources toward ineffective border enforcement, but appeared to oppose any path to citizenship for undocumented immigrants. Simply put, these are positions that put her at odds with the majority of New Yorkers, whose values reflect our state’s history of welcoming immigrants, as well as with President Barack Obama, who supports a path to citizenship for undocumented immigrants.

I could be wrong, but I think, as a statewide representative, she’ll be more liberal, if only because she’ll have to be to get the nomination. On the very day Gillibrand was named to the Senate seat, Carolyn McCarthy vowed to challenge Gillibrand, directly or indirectly, in the 2010 Democratic primary. The seat will also require candidates in 2012, when Senator Clinton’s term would have been up.

Here’s an interesting perspective in the New York Times about the whole process of naming Hillary Clinton’s successor:
Now that Gov. David Paterson of New York has completed his operatic quest to fill Hillary Clinton’s Senate seat and Roland Burris, chosen by the embattled Illinois governor to succeed Barack Obama, has made it past Capitol Hill security, we can safely conclude that appointing senators might not be such a good idea.

Actually, Americans came to that conclusion in 1913, when the 17th Amendment mandated regular senatorial elections…

The very problems the amendment was meant to address persist. Consider this: Nearly a quarter of the United States senators who have taken office since the 17th Amendment took effect have done so via appointment. Once Representative Kirsten Gillibrand, Mr. Paterson’s choice, joins the Senate, she will be one of more than 180 senators named by governors since 1913.

By contrast, the Constitution mandates special elections for all vacancies in the House — even though representatives are far less powerful than senators.

Yet only a handful of states routinely fill vacated Senate seats by special election. The result is a tyranny of appointments.

Not so incidentally, the race for the Gillibrand House seat will have at least three well-known Republicans, including the wealthy Sandy Treadwell, whose ads netted him 150,000 votes in 2008, but only a couple unknown Democrats. The seat will almost certainly go back to the Republican column. It may be better for Gov. Paterson, who’s up for election in 2010, to have an upstate woman on the ticket running with him than to worry about one House seat. Moreover, New York will lose one, maybe two Congressional seats in 2012, after the 2010 Census, and the map, drawn by the state legislature, currently controlled in both houses by the Democrats, might well gerrymander the district out of existence.

ROG

April Ramblin’

Added to my blogroll:

Bob and Ray’s Old Time Radio.

Sports Illustrated Vault.

Stuff I’ve been thinking about:

The 2008 TIME 100 Finalists. Tyler Perry went from the middle of the pack to #4 after he sent out e-mails to his fans. Meanwhile, at #73, Britney Spears is ahead of Condi Rice, David Petraeus and George W. Bush,, among many others.

The BBB Offers Free Document Shredding During National “Secure Your ID” Day – May 3, 2008; not one community in New York State is participating!

Who is the patriot? One who served or one who deferred and continued to defer and never served?

Bill Moyers: Journalists As Truth-Tellers. Were it more so.

Why it’s so tough to unseat incumbent politicians

Power to the people vs give peace a chance. Ah, Mike Gravel, you rock.

What your money looks like, if you’re using US currency.

Having To Say You Work For A Bimbo.

The Global Tribute Fund is “an initiative to pay tribute to the inspiring women in our lives.”

Please DO NOT buy this book.

Garrison Keillor gets nostalgic over Northwest Airlines. Obviously, the OLD Northwest Orient, because the conglomerate that’s threatening to merge with Delta is the one airline I absolutely have refused to fly for years.

There’s a comic book show in Albany this Sunday; might go. I thought to go to the NYCC last weekend, but it didn’t work out; Fred Hembeck tells all about it. Ron Marz and my friend Bill Anderson will have been at both shows.

How to Slap a Hamburger Together — in 156 Steps.

Sexy Trips to the Library Stacks. But would you expect otherwise?

ROG