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Obama Ready for SCOTUS Fight?

Wed, 04/21/2010 - 15:10

A White House official told TPM's Christina Bellatoni that, because Republicans wil create a battle royale over any candidate he names for the SCOTUS vacancy created by Justice Stevens' retirement, Obama might not make a cautious choice.

In comments that are at odds with the conventional wisdom about what Obama needs to do to make sure the Senate confirms his nominee to replace John Paul Stevens, a White House official involved in the confirmation process tells TPMDC that the President isn't taking a cautious approach to selecting a nominee. Despite having one less Democrat in the Senate than when Sonia Sotomayor was confirmed last year, the administration isn't limiting itself to reviewing only centrist candidates for the court vacancy, the official said.

"It doesn't matter who he chooses, there is going to be a big 'ol fight over it. So he doesn't have to get sidetracked by those sorts of concerns," the official told me. The GOP has attempted to obstruct "anything of consequence" put forth by the Obama administration since he took office, the official said. "The president is making this decision with a pretty clear view that whoever he chooses is going to provoke a strong reaction on the right," the official added.

That's a pretty safe assumption, since the conservative group Judicial Watch has already declared everyone on the supposed short-list is unacceptable. Given that reality, which the White House is more than aware of, it only makes sense to do what bloggers and strategists from Kevin Drum to Ed Kilgore have advised: make this a fight.

To that end, Glenn Greenwald makes a very compelling case for Seventh Circuit Court of Appeals Judge Diane Wood. But if Obama is truly feeling unfettered and willing to make this a real fight, then he should look no further than Standford law professor Pam Karlan.


Violent Rhetoric Causing Violence?

Wed, 04/21/2010 - 14:30

Of the violent rhetoric coming from today's bastardized version of "patriots," Mississippi Governor Haley Barbour says:

... that claiming the “tea party movement is going to cause people to be violent” is the “biggest crock that you've ever seen.”

“That is the lowest form of just absolute demagoguery, and there is just no basis to it."

And from one of the protesters at Monday's gun rally:

... former Alabama Minutemen leader Mike Vanderboegh told the crowd that armed confrontation should be reserved only for instances of the government threatening people's lives.

However, he said it might be justified if people face arrest for refusing to buy insurance under the health care reform package recently passed by Congress.

"If I know I'm not going to get a fair trial in federal court . . . I at least have the right to an unfair gunfight," Mr. Vanderboegh said.

Mr. Vanderboegh as you may recall, was the teabagger living on government disability, who successfully advocated for bricks to be thrown through Democratic lawmaker's office windows to protest health care reform.

It remains to be seen how his idea about "unfair gunfights" with federal agents works out.


Cheers and Jeers: Wednesday

Wed, 04/21/2010 - 13:47

From the GREAT STATE OF MAINE...

Perfectly clear

Militia advocate Al Gerhart, who "heads a group of Tea Party factions collectively known as the Oklahoma Constitutional Alliance," last week on Hardball:

"What our founding fathers envisioned---they never envisioned having a standing army. The Second Amendment was not about your right to shoot a burglar, protect your family. The Second Amendment was the right of the states to have a militia. What the founding fathers envisioned was all these state militias that basically kept the federal government in check just by their very existence."

Really?

Skip Coryell, founder of the Second Amendment gun-rights gathering in D.C., this week on Hardball:

"I‘m standing in Washington, D.C., next to the national monument, Washington Monument. I‘m unarmed. Normally, I would carry a pistol for self-defense. Right now, I am defenseless, except for your cameraman, but I don‘t think he‘s going to do a whole lot of good if I try and---if someone mugs me right now. So the right to keep and bear arms---I am being infringed upon right now as we speak, sir. [...] I want a pistol on my side. I want to be able to protect my family. I got four little kids. I got a 4-year-old little boy. I‘ve got a 5-month-old baby. I want to be able to protect them and my wife."

Conclusions: 1) Even the Second Amendment crowd can't agree on the damn thing, 2) Mr. Coryell owes a cameraman an itty bitty apology for insulting him to his face, and 3) If you ain't packin' a bazooka when you go to Starbucks for your lette with whipped cream and sprinkles, you ain't a real man. (That last one is so true I had it tattooed on my chest. Specifically, around the circumference of my right nipple.)

Cheers and Jeers starts in There's Moreville... [Swoosh!!] RIGHTNOW! [Gong!!]


Your Abbreviated Pundit Round-up

Wed, 04/21/2010 - 12:31

Wednesday opinionating, with a dash of news.

Thomas Friedman:

Have no illusions, the rest of the world was watching our health care debate very closely, waiting to see who would be the strong horse — Obama or his Democratic and Republican health care opponents? At every turn in the debate, America’s enemies and rivals were gauging what the outcome might mean for their own ability to push around an untested U.S. president.

It remains to be seen whether, in the long run, America will be made physically healthier by the bill’s passage. But, in the short run, Obama definitely was made geopolitically healthier.

That's very funny, because it's exactly how pundits react. It's why Bush got a pass for so many years from the Heathers in the press. Friedman was no exception.

Dave Weigel documents how Drudge is trying to change the subject on Goldman Sachs, suggesting:

Want to know whether conservatives are fretting about the effect the Goldman Sachs story could have on the financial reform debate? Check out Drudge.

But you don't need to check out Drudge, just check out Weigel. Goldman Sachs is doing to financial reform what big rate hikes did for health reform - help Democrats get a bill passed. Don't believe it? See next entries:

WaPo:

Key Senate Republicans on Tuesday began to back away from their sharp criticism of proposed new financial regulations and expressed optimism that a bipartisan deal on a bill that would drastically change the way Wall Street operates could emerge in the coming days.

Harold Meyerson:

The Goldman Sachs scandal has done the unthinkable: It's made it possible that legislation reining in Wall Street's casino may actually be enacted.

Unfinished Business

Tribune Washington Bureau:  

Congressional Democrats have begun pushing legislation giving government regulators greater authority to block big increases in health insurance premiums, kicking off what is expected to be a years-long process of revising and expanding their major health care  overhaul.

The move, which comes less than a month after President Barack Obama signed the health care legislation, is aimed at giving all states the power to stop premium hikes deemed excessive and allowing the federal government to step in if the states don't act.

Filibuster that.

Kaiser health news:

Some Health Insurers Move To Cover Kids Up To Age 26 Even Earlier Than Law Requires

Summary from various news sources. Funny what a little pressure from the WH can do.


Wednesday Morning Open Thread

Wed, 04/21/2010 - 12:05
Good morning.

The President is hosting a meeting this morning with Senate leaders to talk about the upcoming nomination of the next Supreme Court Justice. He'll be joined by Senators Reid, Leahy, McConnell, Jefferson Beauregard Sessions III. Sessions is the ranking Republican on the Senate Judiciary Committee and truly one of the most heinous members of that body. I'm sure McConnell and Sessions will make it clear to Obama that no one he nominates will be acceptable to them, because that's how the GOPers roll these days.

This afternoon, Obama hosts Olympians and ParaOlympians from the Winter Games at the White House.

Tomorrow, Obama is heading to New York to talk Wall Street reform. Meanwhile, the Senate leaders have re-engaged to look for a bipartisan compromise on reform. So, Mitch McConnell's temper tantrum from last week -- and the threat of a filibuster once again had the desired effect.

Let's get it started...


Early Morning Swim: Rachel Maddow Talks Financial Reform with Paul Krugman

Wed, 04/21/2010 - 11:44

The Shrill One:

Talking Points Memo reports that Democrats are largely unprepared for the possibility that Republicans will filibuster financial reform.

Is this really possible? I’m afraid it is. My own conversations with administration officials over the past few weeks have given me the sense that they were quite sure that FinReg wouldn’t be like health care — and that they didn’t seem to take seriously those (including me) who thought they were taking too much for granted.

I have a theory about the problem here. My understanding is that Obama officials have looked at the polls, which show that the public overwhelmingly favors cracking down on Wall Street; so they assumed that the GOP wouldn’t dare stand in the way. But they seem not to have learned, even now, that the right has an awesome ability to create its own reality: that Mitch McConnell et al would stand in the way of reform while claiming to be taking a stand against Wall Street.

Lucy and the football, indeed.

NV-Sen: Lowden camp asks for chickens in lieu of cash contributions

Wed, 04/21/2010 - 03:30

Wow, Sue Lowden is really putting her moneychickens where her mouthfoot is:

GOP candidate asks supporters to donate chickens to her U.S. Senate campaign

Winnemucca, NV -- Sue Lowden, the likely Republican nominee for U.S. Senate in Nevada, today asked campaign donors to make contributions in the form of live chickens instead of cash.

"What this campaign really needs now is chickens," Lowden said. "You can use chickens for pretty much anything you can use cash for, except with chickens, you'll have something to eat if your family gets sent off to the FEMA camps with Glenn Beck."

Lowden said that because they were edible, chickens were actually more valuable than dollars, and that chicken donations would be the key to her victory. "If we can build a warchest of ten to twenty million chickens, we'll definitely be able to beat Harry Reid this November."

Lowden said she was requesting that supporters donate chickens as a way to show solidarity with her plan to bring back the barter system after the GOP repeals health care reform. Lowden says she is "not backing down" from her barter proposal which includes her now famous campaign slogan "bring a chicken to the doctor."

To avoid any accusations of socialism, Lowden requested that all donated chickens be interviewed by Glenn Beck for capitalist purity. Among the criteria: the chickens must have been hatched on private land, they must never have used any public natural resource including water and air, and they must never have been transported on a public road that has received any Federal funding.

That bit of snark aside, Lowden really did say she is "not backing down" on her barter plan, including the idea that people should "bring a chicken to the doctor."


Late Nite FDL 4/20: Name That Pot Campaign Contest!

Wed, 04/21/2010 - 03:02

It’s been a few years since the last FDL Late Nite contest allowed our readers to display their skill at doggerel.  Four to be exact.

Long-time FDLers will remember that in 2006, the Vice President of the United States, Richard B. Cheney, shot Harry Widdington in the face and then refused to talk to the cops about it for a day.   In order to commemorate that notable event, we held the Dick Cheney poetry contest — or “Dickfest” as we called it.  Hundreds of entries were submitted, our readers voted, and the prize went to 88 for this poem:

If epitaphs were polygraphs,
This, terse and edifying,
Would crown the veep in final sleep:
Here lies Big Time–still lying.

Dickfest was immensely popular, inspiring art, a t-shirt line, and even immitators. Since that time, we haven’t feet that there has been a moment quite so poignantly appropriate to display the poetic prowess of our readers til now:  We need a great name for our marijuana campaign.

Some suggested that we simply appropriate the “yes we cannabis” slogan that other campaigns have used, but after perusing a bunch of old High Times covers I became convinced that our readers, inspired by the subject matter, could easily surpass that. So here are the rules:

  1. All entries must be submitted in the form below by 8pm ET tomorrow night.
  2. Slogan must be no longer than 5 words — should be able to fit on a bumper sticker or a t-shirt.
  3. Semi-final voting will begin tomorrow night at 11pm, when we’ll be here at Late Nite once again to let everyone know what the entries are.   Voting will close at 8pm the following night.
  4. The top 10 vote getters will proceed to the finals on Thursday Night Late Night, and voting will continue through the weekend.
  5. We’ll announce the Gold, Silver and Bronze medalists at Late Nite a week from tonight.

Remember — the campaign is not aimed at babes in bikinis roller skating on the Venice boardwalk.  Well, not exclusively anyway.  When marijuana legislation goes on the ballot in November and beyond, many voters  are older and likely to be persuaded more by pragmatism than stoner puns. But, hell.  Who are we to limit anyone’s creativity.

We’ll also use the winning slogan (or slogans, as the case may be) for the campaign, as well as on t-shirts, bumper stickers and whatever else we decide might be good for getting the message out.

If you’re looking for inspiration,  the Marijuana Policy Project has a series of informative short videos on YouTube, the Drug Policy Alliance has a page on myths & facts, Students for Sensible Drug Policy also has a fact sheet, and Law Enforcement Against Prohibition (LEAP) has great messaging on how the “War on Drugs” has backfired.

We also have some special guests who have been working on drug policy for years who will be joining us in the comments.  So please help me welcome them as we celebrate 4/20 in fine FDL fashion.  It’s great to be back hosting Late Nite once again, and I’m looking forward to seeing the fruits of everyone’s personal 4/20 celebration in the comments!

McCaskill and Whitehouse on Judicial Nominees, GOP Holds

Wed, 04/21/2010 - 02:46

Claire McCaskill and Sheldon Whitehouse took to the floor this morning to try to shed a little sunlight on the nearly 80 secret holds Republicans have on Presidential nominations.

She had a list of 18 judicial nominees with her, and asked for unanimous consent for each one of them, forcing the holder of those nominees Jon Kyl, to object to each.

She promised to come back to the floor with the remaining 60 some nominees.

Sheldon Whitehouse also spoke about the obstruction of the Republicans, even of those candidates who had unanimous votes out of conference.

This direct pressure on the Republicans might not have been enough to get rid of these holds, but it might have actually shamed them a little. The end result today was two confirmation votes. Lael Brainard was confirmed as Treasury undersecretary for international affairs with a 78-19 vote. One of Obama's most controversial nominees, Marisa Demeo, was confirmed to the D.C. Superior Court, 66-32.


Are "Synthetic CDOs" Innovation? Or Merely Fraud?

Wed, 04/21/2010 - 02:02

On Monday, Devilstower went through some of the ins and outs of the Goldman Sachs / Paulson / Magnetar deals, including discussion of that latest of Wall Street "innovations" to have nearly brought down the world economy. You know, the one that might or might not represent criminal fraud...

Now we start to dig for the details. There will be a prospectus on each of these CDOs, and it's very likely that numerically these babies are going to be correct. What it's going to come down to is the language of the prospectus and the discussions (verbal and email) that were held with clients.

Complicating things is that the "synthetic" CDOs at the heart of the Goldman / Paulson end of this deal where not regular CDOs built by bundling together loans. Complicated as those are, these were a couple of steps removed. These synthetic CDOs were composed from bundles made up of swaps, in this case the pay-out side of default swaps on other CDOs. [...]

What looks to make all this possible is a drastic undervaluing of the cost of default swaps which in turn was made possible by an over-valuing of the intelligence and moral judgment of the people involved in the market. In short, there was an intrinsic expectation that people won't purposely buy crap, because most people didn't think it through to the "how to leave another guy holding the bag" stage. Which is exactly the weakness that Magnetar and other hedge funds spotted after spending months studying the market and talking to the people who sold these instruments.

Ah, "synthetic" CDOs. Wonderful.

Something to note here is that we are multiple levels removed, at this point, from any of the these products having any market rationale other than purely as gambling among various investment firms. If all of the "financial innovations" we're discussing here were banned tomorrow, it would make not a damn bit of difference to any firm in the nation making physical products or selling non-financial services.

Instead, we're talking about multiple layers of increasingly-crazy financial instruments that exist for no other reason than to give the financial industry more things to bet on. And at some point you have to ask yourself, given how preposterously huge the financial sector has gotten when compared to the rest of the economy, just how much of our economy should exist solely as bets among a small set of massive financial firms. It doesn't help businesses raise capital. It doesn't get widgets delivered more effectively. It doesn't even do the one thing these products were purported to be invented for in the first place -- reduce financial risk. (One could even argue that it sucks capital out of more productive business uses, since everyone on Wall Street is apparently so enamored with investing capital in fake industries that it has become harder and harder to find firms willing to invest it in real ones.)

Instead, the recent "innovations" of Goldman Sachs, AIG and the rest of Wall Street were in crafting an absurd shadow economy in which actual, concrete industry, products, debts or work is only used as the barest of theoretical foundations upon which to build layer upon layer of completely imaginary crap. This is apparently the highest and best use of economics, and was all was invented in order to provide new, abstract "investment opportunities" in things that have little other substantive reason to exist. None of it has purpose except as a way for one broker/company to invent something to sell to another broker/company, under the assumption that the broker/company who invented it will, by virtue of knowing a little more about the "thing" than whoever else buys it, will be able to gamble more knowledgeably about the outcome than anyone else.

Imagine what would have happened if we really did privatize social security, and as a result had dumped that whole massive pile of money into the financial markets -- money that had never before been available to them.  Well, there's no actual business use for any of that money -- there's only so much credit that can be sucked up, as we've been seeing -- so the only place that money can go is into speculation, in the form of either inflating stock prices or, more likely, going into inventing still more pools of abstract money based on other people's abstract money based on a third set of abstract money.  And everybody gets a new pair of dice to roll.

That's what's perhaps most annoying about all of this. Granted, I am no financial wunderkind collecting millions of dollars in bonuses as reward for figuring out how to sucker punch investors in the next office down, but I have yet to see it explained in any credible way why we need to have massive, hyper-leveraged gambling taking place on products that represent nothing.

A perfectly serious question, then: if we banned the whole notion of CDOs tomorrow -- just completely gutted that entire precept of the market, chopped off the whole limb -- what would suffer?


To Date Or To Hook Up?

Wed, 04/21/2010 - 01:48


You may have seen references to a new study about which heterosexual college students prefer and how gender enters into that. The conclusions of the study include:

Even though men initiated significantly more first dates than women, there was no gender difference in the number of first dates or number of hook-ups. For both men and women, the number of hook ups was nearly double the number of first dates.

Overall, both genders showed a preference for traditional dating over hooking up. However, of those students who strongly preferred traditional dating, there were significantly more women than men (41 percent versus 20 percent). Of those who showed a strong preference for hooking up, there were far fewer women than men (2 percent versus 17 percent). However, context mattered: when considering the possibility of a long-term relationship, both women and men preferred dating over hooking up; however, when the possibility of a relationship was not mentioned, men preferred hooking up and women preferred dating.

On the whole, men and women agreed on the benefits and risks of dating and hooking up.

However, there were some notable differences:

* Women more than men seem to want a relationship. They fear, both in dating and hooking up, that they will become emotionally attached to a partner who is not interested in them.
* Men more than women seem to value independence. They fear that even in hooking up relationships, which are supposed to be free of commitments, a woman might seek to establish a relationship.

That's not a bad summary of the findings, actually. Yup. I went and read the study! Before you run with its results, have a look at the following list of problems:

1. The study is based on a convenience sample. Convenience samples are just that: convenient. But they are not based on random sampling.

Why would this matter? Because:

Convenience sampling (sometimes known as grab or opportunity sampling) is a type of nonprobability sampling which involves the sample being drawn from that part of the population which is close to hand. That is, a sample population selected because it is readily available and convenient. The researcher using such a sample cannot scientifically make generalizations about the total population from this sample because it would not be representative enough.

It's unclear how the sample was selected, except that it consists of students who got course credit for their participation from the psychology department. This is probably also the reason why the study has twice as many female as male participants (women take more psychology courses). If you keep in mind that men and women of the chosen age group are roughly the same in numbers in the general population the unequal sample sizes come across as odd.

2. The sample consists of mostly first-year undergraduate students. The average age of the study subjects was 18.72 years. We are talking about very young men and women here. Teenagers, in fact. Teenagers may not have the same dating or hooking-up patterns as older college students.

3. The study defines dating as a traditional male-initiated process: The man invites the woman, he picks her up, he treats her, he takes her back home. He can ask for sex and she can refuse it. Hooking-up, on the other hand, is defined as a fairly egalitarian process about necking or kissing or intercourse or whatever. Either party can initiate it.

Note that there is no third alternative, such as some kind of egalitarian dating with going Dutch. It's important to keep that in mind in evaluating the study findings. We have no idea how the study participants would have ranked egalitarian dating.

4. The checklists of items the study used (for the subjects to agree or disagree about) were not identical for men and women. An example about the possible benefits of traditional dating:

For the benefits of traditional dating, we listed 36 possible benefits for men and 34 possible benefits for women. Twenty-seven of these benefits were identical for both genders (e.g., "Traditional dating is romantic"), with the remaining possible benefits gender specific (e.g., for men, "You can ask anyone you are interested in on a date"; for women, "You have the power to reject a date").

Similar gender differences were applied to the checklist covering the possible risks of traditional dating. The checklists for the benefits of hooking-up were identical for both sexes but the checklists for the risks of hooking-up were not:

Two items were gender specific. ("Risk getting pregnant" vs. "Risk of getting partner pregnant" and "Can get a bad reputation for being 'easy' or a whore" vs. "Can get a bad reputation of using women").

Why would such differences matter if they are not about the questions discussed in the above summary? Because the overall experience might affect the answers one gives. For instance, men get reminded about their responsibility in the concept of traditional dating this study used, and that reminder is different from the reminders women get.

That's why my point about the two choices is an important one. The study did not ask how students would have felt about egalitarian dating.

SCOTUS Strikes Down Ban On "Animal Cruelty" Images

Wed, 04/21/2010 - 01:16

An apparently real video depicts the following activity -- and as the first readers of this story have recommended, the squeamish may just want to skip ahead to the next blockquote:

A kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone.

In 1999, Congress passed and President Clinton signed into law 18 USC § 48, intended to ban such videos of animal cruelty which were created for the sexual gratification of certain fetishists.  The law stated:

(a) Creation, Sale, or Possession.— Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c)(1) Definitions.— In this section the term "depiction of animal cruelty" means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State.

In an 8-1 decision authored by the Chief Justice, the Supreme Court of the United States today struck down that statute as unconstitutional.
::
::
Robert Stevens ran a business, "Dogs of Velvet and Steel," along with a website through which he sold videos of pit bulls fighting each other and other animals, including wild boars and domestic pigs.  He challenged the law as unconstitutional both as-applied to him and in general.  [Translated: "you can't ban my dogfighting videos through this statute" and "this statute is too broad to apply to anyone."]

The United States Government, in trying to defend the law, attempted to have depictions of animal cruelty added to that narrow list of categories of speech which are not constitutionally protected -- obscenity, defamation, speech integral to criminal conduct, fraud and child pornography.  [You know how we've talked in the DOMA context about DOJ's obligation to defend all plausibly constitutional laws as vigorously as it could?  This is one of those.]  The Court disagreed:

As the Government notes, the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies. Reply Brief 12, n. 8; see, e.g., The Body of Liberties §92 (Mass. Bay Colony 1641), reprinted in American Historical Documents 1000–1904, 43 Harvard Classics 66, 79 (C. Eliot ed. 1910) ("No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for man’s use"). But we are unaware of any similar tradition excluding depictions of animal cruelty from "the freedom of speech" codified in the First Amendment, and the Government points us to none.

...The Government thus proposes that a claim of categorical exclusion  should be considered under a simple balancing test: "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs."

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison, 1 Cranch 137, 178 (1803)....

When we have identified categories of speech as fully outside the  protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. In Ferber, for example, we classified child pornography as such a category. We noted that the State of New York had a compelling interest in protecting children from abuse, and that the value of using children in these works (as opposed to simulated conduct or adult actors) was de minimis. But our decision did not rest on this "balance of competing interests" alone. We made clear that Ferber presented a special case: The market for child pornography was "intrinsically related" to the underlying abuse, and was therefore "an integral part of the production of such materials, an activity illegal throughout the Nation."  As we noted, "‘[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.’"

The Court went on to address the facial challenge to the statute -- i.e., "can we at least apply this constitutionally to crush videos and animal fighting, but prevent it from being enforced against other stuff?"  As to this, the Court determined that the statute was just written too broadly:

We read § 48 to create a criminal prohibition of alarming breadth. To begin with, the text of the statute’s ban on a "depiction of animal cruelty" nowhere requires that the depicted conduct be cruel. That text applies to "any . . . depiction" in which "a living animal is intentionally maimed, mutilated, tortured, wounded, or killed." §48(c)(1). "[M]aimed, mutilated, [and] tortured" convey cruelty, but "wounded" or "killed" do not suggest any such limitation....

What is more, the application of §48 to depictions of illegal conduct extends to conduct that is illegal in only a single jurisdiction. Under subsection (c)(1), the depicted conduct need only be illegal in "the State in which the creation, sale, or possession takes place, regardless of whether the . . . wounding . . . or killing took place in [that] State." A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another State where the same conduct is unlawful.... Those seeking to comply with the law thus face a bewildering maze of regulations from at least 56 separate jurisdictions. Some States permit hunting with crossbows, Ga. Code Ann. §27–3–4(1) (2007); Va. Code Ann. §29.1–519(A)(6) (Lexis 2008 Cum. Supp.), while others forbid it, Ore. Admin. Reg. 635–065–0725 (2009), or restrict it only to the disabled, N. Y. Envir. Conserv. Law Ann. §11–0901(16) (West 2005). Missouri allows the "canned" hunting of ungulates held in captivity, Mo. Code Regs. Ann.,tit. 3, 10–9.560(1), but Montana restricts such hunting to certain bird species, Mont. Admin. Rule 12.6.1202(1)(2007). The sharp-tailed grouse may be hunted in Idaho, but not in Washington. Compare Idaho Admin. Code §13.01.09.606 (2009) with Wash. Admin. Code §232–28–342 (2009).

And as for whether the exceptions sufficiently limited the bill, um, no:

Subsection (b) exempts from prohibition "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value." The Government argues that this clause substantially narrows the statute’s reach: News reports about animal cruelty have "journalistic" value; pictures of bullfights in Spain have "historical" value; and instructional hunting videos have "educational" value. Thus, the Government argues, §48 reaches only crush videos, depictions of animal fighting (other than Spanish bullfighting), and perhaps other depictions of "extreme acts of animal cruelty." The Government’s attempt to narrow the statutory ban, however, requires an unrealistically broad reading of the exceptions clause.... [T]he text says "serious" value, and "serious" should be taken seriously. We decline the Government’s invitation— advanced for the first time in this Court—to regard as "serious" anything that is not "scant." (Or, as the dissent puts it, "‘trifling.’") As the Government recognized below, "serious" ordinarily means a good bit more....

Quite apart from the requirement of "serious" value in §48(b), the excepted speech must also fall within one of the enumerated categories. Much speech does not. Most hunting videos, for example, are not obviously instructional in nature, except in the sense that all life is a lesson. According to Safari Club International and the Congressional Sportsmen’s Foundation, many popular videos "have primarily entertainment value" and are designed to "entertai[n] the viewer, marke[t] hunting equipment, or increas[e] the hunting community." The National Rifle Association agrees that "much of the content of hunting media . . . is merely recreational in nature."  The Government offers no principled explanation why these depictions of hunting or depictions of Spanish bullfights would be inherently valuable while those of Japanese dogfights are not. The dissent contends that hunting depictions must have serious value because hunting has serious value, in a way that dogfights presumably do not.  But §48(b) addresses the value of the depictions, not of the underlying activity. There is simply no adequate reading of the exceptions clause that results in the statute’s banning only the depictions the Government would like to ban.

Not to worry, the Government says: The Executive Branch construes §48 to reach only "extreme" cruelty, and it "neither has brought nor will bring a prosecution for anything less." The Government hits this theme hard, invoking its prosecutorial discretion several times.  But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions "of wanton cruelty to animals designed to appeal to a prurient interest in sex." See Statement by President William J. Clinton upon Signing H. R. 1887, 34 Weekly Comp. Pres. Doc. 2557 (Dec. 9, 1999). No one suggests that the videos in this case fit that description. The Government’s assurance that it will apply §48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.

[Yes, you read that right: "we see there was a signing statement, and we don't care."]

So, alright, who was that masked lone dissenter?  Who stood up for animals?  If you had Justice Alito in the pool, congratulations:

The Court strikes down in its entirety a valuable statute, 18 U. S. C. §48, that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty—in particular, the creation and commercial exploitation of "crush videos," a form of depraved entertainment that has no social value. The Court’s approach, which has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production, is unwarranted....

Instead of applying the doctrine of overbreadth, I would vacate the decision below and instruct the Court of Appeals on remand to decide whether the videos that respondent sold are constitutionally protected. If the question of overbreadth is to be decided, however, I do not think the present record supports the Court’s conclusion that §48 bans a substantial quantity of protected speech.

I do not have the slightest doubt that Congress, in enacting §48, had no intention of restricting the creation, sale, or possession of depictions of hunting. Proponents of the law made this point clearly. See H. R. Rep. No. 106–397, p. 8 (1999) (hereinafter H. R. Rep.) ("[D]epictions of ordinary hunting and fishing activities do not fall within the scope of the statute"); 145 Cong. Rec. 25894 (Oct. 19,1999) (Rep. McCollum) ("[T]he sale of depictions of legal activities, such as hunting and fishing, would not be illegal under this bill"); id., at 25895 (Rep. Smith) ("[L]et us be clear as to what this legislation will not do. It will in no way prohibit hunting, fishing, or wildlife videos"). Indeed, even opponents acknowledged that §48 was not intended to reach ordinary hunting depictions. See ibid. (Rep. Scott); id., at 25897 (Rep. Paul).

For these reasons, I am convinced that §48 has no application to depictions of hunting. But even if §48 did impermissibly reach the sale or possession of depictions of hunting in a few unusual situations (for example, the sale in Oregon of a depiction of hunting with a crossbow in Virginia or the sale in Washington State of the hunting of a sharp-tailed grouse in Idaho, those isolated applications would hardly show that §48 bans a substantial amount of protected speech.

I'll leave his discussion of Puerto Rican cockfighting for another day.  But as for crush videos, Justice Alito focused on the difficulties in prosecuting the underlying cruelty depicted therein, making it (in his views) closer to child pornography than not:

[B]efore the enactment of §48, the underlying conduct depicted in crush videos was nearly impossible to prosecute. These videos, which "often appeal to persons with a very specific sexual fetish," were made in secret, generally without a live audience, and "the faces of the women inflicting the torture in the material often were not shown, nor could the location of the place where the cruelty was being inflicted or the date of the activity be ascertained from the depiction." Thus, law enforcement authorities often were not able to identify the parties responsible for the torture. In the rare instances in which it was possible to identify and find the perpetrators, they "often were able to successfully assert as a defense that the State could not prove its jurisdiction over the place where the act occurred or that the actions depicted took place within the time specified in the State statute of limitations."

In light of the practical problems thwarting the prosecution of the creators of crush videos under state animal cruelty laws, Congress concluded that the only effective way of stopping the underlying criminal conduct was to prohibit the commercial exploitation of the videos of that conduct. And Congress’ strategy appears to have been vindicated. We are told that "[b]y 2007, sponsors of §48 declared the crush video industry dead. Even overseas Websites shut down in the wake of §48. Now, after the Third Circuit’s decision [facially invalidating the statute], crush videos are already back online."

[W]hile protecting children [from being abused in creating pornography] is unquestionably more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos.

The animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country. In Ferber, the Court noted that "virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating ‘child pornography,’" and the Court declined to "second-guess [that] legislative judgment."  Here, likewise, the Court of Appeals erred in second-guessing the legislative judgment about the importance of preventing cruelty to animals.

Justice Alito goes through the same analysis as to dogfighting videos, relying heavily on the amicus brief of the Humane Society.

Bottom line: if Congress wants to address such videos, it's got to try harder and be narrower next time.  [One of the amici suggests to limit the statute to depictions of activities illegal under anti-cruelty laws as opposed to illegal under state law generally. This could be solved by creating a federal definition of animal cruelty with the new statute, perhaps.]

SCOTUSwiki has links to the briefs and oral argument, which Dahlia Lithwick ably covered.  


White House Announces New Regulatory Agency To Regulate Regulatory Agencies

Wed, 04/21/2010 - 01:01

Graphic by I Can Has Cheezburger?

Washington, D.C. – In a surprise press conference this afternoon, White House Spokesman Robert Gibbs announced the creation of a new regulatory agency, the Business Protection Agency, that will provide much-needed oversight of the federal government’s many abusive and out-of-control regulatory agencies.

A series of news stories this week have highlighted the business community’s growing sense of frustration with a White House and Democratic establishment which is often indifferent to their needs:

  • The Washington Post mentions that the coal industry “blamed [Rep. Nick Rahall (D-WV)] for not reining in the EPA” in its story about the Massey mine explosion’s political ramifications.
  • Reuters reports on JP Morgan CEO Jamie Dimon’s complaint that the banking industry doesn’t have enough influence, and how “there were areas where the banks lacked possibilities to demonstrate their arguments to politicians and supply them with the right facts.”
  • Politico describes the business community’s fears that Obama’s recess appointments of Craig Becker and Mark Pearce pose a mortal threat to their traditional way of life.

Faced with this level of fear and uncertainty, President Obama reacted with characteristic decisiveness, pushing his aides to work nights and weekends to quickly devise a regulatory solution that would prevent agencies from preying on defenseless corporations.

“President Obama recognizes that just because corporations cannot vote, that does not mean they should not have a voice,” said Gibbs.  “The President has a long history of commitment to the rights of the disenfranchised and the downtrodden, and he could not stand idly by while unaccountable agency barons used their power and influence to take advantage of our most vulnerable persons.  The government must speak for those who cannot speak for themselves, and stand up for those who cannot stand up for themselves, especially when they don’t have mouths or feet.”

A United States Chamber Of Commerce spokesman expressed cautious optimism about the new agency: “This is a good first step towards bringing the regulators under control, but the proof is in the pudding.  Will the BPA have enough funding to be effective?  Will it have enough inspectors to police all the agencies on a regular basis?  What kind of loopholes can these agencies exploit?  What kind of enforcement mechanisms are there?  Until we know the answers to these questions, we can’t say whether this is true reform or just election-year grandstanding.”

The next step will be what is expected to be a bruising Senate approval process.  Republican leaders have already pledged to filibuster what they are calling “yet another overreaching liberal big government socialist power grab of socialism,” and Democratic caucus members Ben Nelson and Joseph Lieberman are demanding significant compromises in the new agency’s scope, as well as several submarine bases and a pony.

Right-wing anti-immigrant group says Lindsey Graham may be being blackmailed because he's gay

Wed, 04/21/2010 - 00:50
We've poked fun before at GOP Senator Lindsey Graham's unclear sexual orientation, but this is getting downright nasty. This comes on the heels of the Teabaggers outing, and attacking, Graham this weekend.The national border security organization known as Americans for Legal Immigration PAC (ALIPAC) is officially calling for US Senator Lindsey Graham (R-SC) to make his homosexual lifestyle public knowledge in the interest of political integrity and national security...

"US Senator Lindsey Graham is gay and while many people in South Carolina and Washington DC know that, the general public and Graham's constituents do not," said William Gheen President of ALIPAC. "I personally do not care about Graham's private life, but in this situation his desire to keep this a secret may explain why he is doing a lot of political dirty work for others who have the power to reveal his secrets. Senator Graham needs to come out of the closet inside that log cabin so the public can rest assured he is not being manipulated with his secret."


Late afternoon/early evening open thread

Wed, 04/21/2010 - 00:10

Markos and Keith Olbermann discuss Sarah Palin's recent comments that she'd like to see an end to the separation of church and state:


NV-Sen: Sue Lowden delivers quote to launch a thousand ads

Tue, 04/20/2010 - 23:36

Sue Lowden, the likely Republican nominee against Harry Reid, is doubling down on her widely ridiculed proposal that people should haggle and barter with doctors to bring down prices.

Appearing yesterday on Nevada Newsmakers, Lowden said:

I’m telling you that this works. You know, before we all started having health care, in the olden days our grandparents, they would bring a chicken to the doctor, they would say I’ll paint your house. I mean, that’s the old days of what people would do to get health care with your doctors. Doctors are very sympathetic people. I’m not backing down from that system.

That's right. "Bring a chicken to the doctor." Seriously. We're not making this up. Watch for yourself:

Clearly, Lowden's absurd statement is going to bite her over and over again during the course the campaign -- it's a huge gift to Harry Reid. Really, the only question Lowden's statement raises is this: how would you mock her health care plan?

Some ideas that I've heard tossed around by others who are far wittier than me:

  • You know, I bet most modern doctors would prefer a KFC meal to a live chicken.  Market efficiencies are not such that killing your own chicken really makes sense anymore.
  • It seems not to have occurred to her that people brought chickens and offered to paint houses in the olden days because EVEN IN THE OLDEN DAYS, PEOPLE COULDN'T AFFORD THEIR DAMN HEALTH CARE.
  • It'll never work ... some asshole will try to game the situation -- bring a snake and say, "but it tastes like chicken."
  • "I'm telling you that this works. As an employer, having your employees barter a chicken beats paying for health care. I'm serious about this. Doctors like chickens."
  • Question: Do turkeys count?
  • Oh, well, in the olden days, yeah. That's a great health care plan, then! You give me a chicken, and I'll put leeches on your face. Deal?
  • I've been picturing granny after her broken hip operation. Should she decide to give up food or climb a ladder and paint?
  • Now mentally picturing an image of an old, sick person in a hospital bed with a doctor standing in the doorway holding a chicken by the feet. Doctor says: Give me that chicken, or I'll expect you at the house by 7:00 a.m. I'll be nice and provide the paint and brushes.
  • Plus no chicken means no eggs. And no eggs means no capital gains taxes. Tax deduction!

Please join the fun -- add your ideas in the comments!


Budget Will Have Reconciliation Instructions: Big Opportunity for Progressives?

Tue, 04/20/2010 - 23:30

Sen. Ben Cardin (D-MD) (photo: rubyshoes)

Well, that was very quick turn around. In 24 hours, Democrats went from not asking for budget reconciliation instructions to planing to include them. This is potentially very good news for progressives. Reconciliation at least gives Democrats the option of possibly achieving some progressive legislative victories this year. From The Hill:

The budget resolution being drafted by Senate Democrats will include reconciliation instructions, according to Democrats briefed on the matter. […]

[T]he reconciliation language could also be used to pass the extension of expiring tax cuts, job-creation measures and energy legislation, according to Sen. Ben Cardin (D-Md.).

Reconciliation bills can’t be filibustered, and so need only a simple majority to pass the Senate. The biggest limiting issue on what can be done with reconciliation is the Byrd rule, which says all provision must affect the budget. Even with this limitation, there is a huge set of potential progressive uses for reconciliation.

The one piece of bad news–and it is bad–is that Democrats are possibly thinking about using reconciliation to extend some Bush-era tax cuts that are set to expire:

Sen. Ron Wyden said the reconciliation instructions in Conrad’s budget draft would include provisions for the extension of expiring tax policies and tax reform.

This would be a foolish waste of reconciliation–it is hard to imagine that Democrats wouldn’t be able to get at least a few Senate Republican votes for tax extenders. If Republicans really want to filibuster a bill to keep taxes low for the majority of Americans because it does not also help the super-rich, Democrats should go ahead and dare them to. It would be a great issue for Democrats going into November.

Personally, I would not be 100% opposed including the the tax cut extension in an omnibus reconciliation bill if and only if it were paid for with progressive reforms like a public option, a greenhouse gas tax, and/or a tax to designed to make “too big to fail” financial institutions unprofitable.

Now that reconciliation instructions will be included in the budget, the important battle will be the scope and design of the reconciliation instructions. The broader the scope the better.

It will also be interesting to see if the instructions are for a deficit-reducing bill or for the less common deficit-increasing reconciliation bill. So far, the indications are that the instructions will be for a deficit-reducing bill, but they don’t technically need to be. Republicans set a precedent in the George W. Bush years by using deficit-increasing reconciliation instructions to pass tax cuts. With unemployment so high, Democrats should think about possibly using a deficit-increasing reconciliation instruction to pass a jobs-creating bill like the “Local Jobs for Americans Act.” Of course, I would prefer to see that measure instead paid for with a robust public option, which is projected to save roughly $115 billion.

It is important to remember that including reconciliation instructions in the budget only leaves open the potential to later push for progressive reform. It is not guarantee that reconciliation will be used at all, or for something good, but it is a critical first step.

Arizona legislature demands immigrants and President of the United States verify their status

Tue, 04/20/2010 - 23:25
Putting aside the birther thing, which is just embarrassing for Arizona, how do the police propose to determine who is and who isn't a legal immigrant? Are they planning on stopping people on the street? Make you prove your birthplace if you're pulled over for a traffic ticket? Who carries that kind of proof on them? Your driver's license doesn't say where you're born, so how exactly will police enforce this? The danger is that they'll simply use this new law to terrorize Latinos, Arabs, and any other out of stater the local police want to harass (and from what I understand from family in Arizona, harassing out of state cars is the local police pastime in parts of Arizona).


If a gay activist held a protest at the White House and no one was around to hear it ...

Tue, 04/20/2010 - 23:00

There is no excuse for this:

This was the reaction to the presence of six protesters, military veterans all, tired of stall tactics designed to guarantee that they will continue to be denied equal rights in a country they fought to defend.