Maggie Gallagher’s NOM Goes After Prop 8 Judges

December 3, 2010 · Posted in The Capitol · Comments Off 

Post image for Maggie Gallagher’s NOM Goes After Prop 8 Judges

On Wednesday, December 1, coincidentally both World AIDS Day and the fifty-fifth anniversary of freedom fighter Rosa Park’s refusal to give up her seat on an Alabama bus, Maggie Gallagher’s National Organization for Marriage (NOM) demanded that one of the Ninth Circuit Court of Appeals judges for next week’s upcoming Prop 8 trial give up his seat on the court. That’s right, after NOM’s successful assault on the Iowa Supreme Court judges who found Iowa’s ban on same-sex marriage unconstitutional (NOM actually helped get them voted out of office,) Maggie Gallagher’s mysteriously-funded anti-gay anti-marriage equality organization is trying to get one of three federal judges appointed to hear the case — Judge Stephen Reinhardt — kicked off the Proposition 8 trial.

NOM’s reasoning? Judge Reinhardt’s wife is the Executive Director of the ACLU of Southern California.

“Judge Reinhardt’s wife, Ramona Ripston, has been involved in this case on numerous accounts, and what we’ve learned from Ed Whelan’s highly informative Bench Memo yesterday, posted on National Review Online (and updated here) is that there is no way Judge Reinhardt can rightfully remain a member of this hearing without making a mockery of the federal judiciary,” said Brian Brown, president of NOM. “We are demanding that Judge Reinhardt to step down immediately and call Californians to write an official complaint to the Ninth Circuit demanding that Judge Reinhardt be disqualified.”

(Of course, we can all agree that Brian Brown’s primary concern in life is the federal judiciary not be made a mockery.)

Indeed, there are many ways to look at this situation. Is a federal judge capable of being objective, regardless of his wife’s (or, hypothetically, his husband’s) involvement in the case? Is there the possibility of the perception of a lack of impartiality? Can we judge a judge based on his or her spouse’s actions, political affiliations, or even sexual orientation?

NOM claims that “there are other circumstances that clearly call his impartiality into question,” and that “Ripston, Reinhardt’s wife, contributed money to the NO on Proposition 8 campaign. It is not known if these funds were joint or separate funds. Ripston publicly cheered the decision by the District Court to declare Proposition 8 unconstitutional. In a media statement, she said, ‘We rejoice at today’s decision but there’s a long road ahead toward establishing true marriage equality for same-sex couples.’”

If this is true, why haven’t Maggie Gallagher, Brian Brown, and the rest of the NOM clan called into question the impartiality of another one of the three judges on the panel who will be hearing next week’s Prop 8 case, Norman Randy Smith? Many believe Judge Smith is a Mormon, and the Mormon Church (The Church of Jesus Christ of Latter-day Saints) was one of the largest contributors to the “Yes On 8″ Prop 8 campaign to ban same-sex marriage in California. Judge Smith, who attended Brigham Young University and received both his undergraduate and post-graduate degrees from that Mormon university, was nominated by Republican President George W. Bush to the Ninth Circuit. Is that not a problem for the National Organization for Marriage too?

If not, why is religion — and participation in religion-based activities, like donating to a political campaign — not a disqualifier for the National Organization for Marriage? And why is sexual orientation? NOM heavily protested Judge Vaughn Walker, the judge on the Prop 8 federal trial, who found Prop 8 unconstitutional. Judge Walker, as it turns out, reportedly is gay.

At the time, Gallagher called Walker’s decision which found Prop 8 to be unconstitutional, a “sin,” and “a slur against the American people.”

Given NOM’s “logic,” once Prop 8 (or the Defense of Marriage Act, or Don’t Ask, Don’t Tell,) gets to the U.S. Supreme Court, Justice Clarence Thomas must automatically recuse himself. After all, Virginia Thomas, Judge Thomas’ wife (who recently made headlines by demanding an apology from her husband’s sexual-harassment accuser, Anita Hill,) is a board member of the anti-gay Heritage Foundation, and founded and was the president of the Tea Party group, Liberty Central. (Mrs. Thomas was recently forced to step down from the group, presumably due to the impropriety of having a sitting Supreme Court Justice’s wife making extremist headlines.)

As a result of Virginia Thomas’ stepping down from Liberty Central, the Tea Party group will now merge with the Patrick Henry Center. Adele M. Stan in Alternet writes, “Also on the Patrick Henry advisory board are two anti-gay activists: Beverly LaHaye, founder of the Concerned Women for America, and Alan Sears, head of the Alliance Defense Fund. Rounding out the advisory board is Howard Phillips, founder of the Constitution Party, which seeks to replace secular law with biblical law. Phillips is one of the founders of the religious right, and a close associate of John Birch Society President John McManus.”

Given the ideological incestuousness of the anti-gay right, is there any possibility that Justice Clarence Thomas — a known anti-gay jurist in his own right — could judge LGBT-related cases without at least the appearance of being partial?

For what it’s worth, I don’t know if Judge Reinhardt should recuse himself, or if Judge Norman Randy Smith should recuse himself, or even, as I’m not a lawyer, if Justice Clarence Thomas should when “Don’t Ask, Don’t Tell,” the Defense of Marriage Act, or other LGBT-related cases come before him. But I do know that if Maggie Gallagher and NOM are to have any credibility with Americans and our sense of fairness, she must demand Supreme Court Justice Clarence Thomas recuse himself from any LGBT-related cases.

If there’s one thing you can count on with Maggie Gallagher, it’s that she’s rarely able to see what’s around the corner. In this game of judicial chess, which Gallagher has been all-too-keen on starting, it’s clear the end result is the that forces of equality will have taken down NOM’s queen, and are poised to capture the king. Thanks, in part, to Maggie.

Editorial note: This piece represents the first of what I hope are many that will be posted also at 365Gay.com. I am grateful to the fine folks there, especially my wonderful editor at 365Gay, Jennifer Vanasco, for inviting me and supporting me. You can read this piece there as well.

Related posts:

  1. Maggie Gallagher Wants Your Money Because “Judge Walker will overrule Prop 8″
  2. If Prop 8 Loses, Maggie Wins
  3. Maggie Gallagher Calls Barack Obama A “Liar”




The New Civil Rights Movement

Prop 8 Judge Tell H8ters to Get Lost; Denies Motion to Disqualify

December 2, 2010 · Posted in The Capitol · Comments Off 

Liberty & Justice by Mirko Ilic

As you know from my report Monday when the three member appellate panel in the 9th Circuit was announce for the Prop 8 case of Perry v. Schwarzenegger, one of the judges assigned was Judge Stephen Reinhardt. Steve Reinhardt is one of the finest judges you will find anywhere, and he is an old school principled and unabashed liberal whose veins carry the lifeblood of social justice, fundamental fairness and equal protection for all citizens.

So, of course the hating bigots that comprise the pro-Propositioin 8 Defendant-Intervenors filed a motion last night to disqualify Reinhardt. Here is the full motion to disqualify brief, it is only 18 pages (10 of text) long and gives a very good glimpse of just how the haters tried to attack Reinhardt here because - gasp! - his wife has spent her career at the ACLU who -gasp! - actually is in favor of marriage equality. In a nutshell, D-Is argue:

Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”). As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.

The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned. His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit…

The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned. His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit.

It is thus plain that Ms. Ripston has an avowed interest in seeing Proposition 8 invalidated, an interest that unquestionably will be substantially affected by the outcome of this proceeding.

The D-I argument is, of course, ginned up baloney. Reinhardt’s wife, Ramona Ripston, was never an attorney of record in the case, has no pecuniary interest in the outcome, and the ACLU is not part of the appeal. But H8ters are gonna hate, and that is what these folks do best.

Steve Reinhardt wasted no time telling them where to place their hate. The D-I motion was filed early last night, and Reinhardt has already issued his order tersely denying the motion:

Filed order (STEPHEN R. REINHARDT) I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal. I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances. See Khatib v. County of Orange, 622 F.3d 1074, 1074 (9th Cir. 2010); Mohamed v. Jeppesen Dataplan, Inc., 586 F.3d 1108, 1109 (9th Cir. 2009); Buono v. Kempthorne, 527 F.3d 758, 760 (9th Cir. 2008); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913, 914 (9th Cir. 2003); Valeria v. Davis, 320 F.3d 1014, 1015 n.** (9th Cir. 2003); Alvarez-Machain v. United States, 284 F.3d 1039, 1039 n.1 (9th Cir. 2002); Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997). Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also Sao Paulo State of the Federated Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 233 (2002) (per curiam). I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED.

Well, that will take care of that. That is what the entire raison de etre of the D-I is though, if you are not like them and believe as they do, you are not equal, not worthy and biased; be it being gay, atheistic/agnostic or liberal you are just simply not fit. Judge Reinhardt told them where to go with that rubbish. It is interesting to note that although there are some very substantial questions that could be asked about the staunch conservative judge appointed to the Perry panel, N. Randy Smith, the appellees have not thrown up unsupported and scurrilous motions to disqualify Smith because, without substantial factual support to do so it would be wrong. That is the qualitative difference in the attorneys and people on the two respective sides.

Now here is where it gets interesting and we move away from silly hate and back to the merits of the appeal. When you hear stories about how the Supreme Court frowns on the liberal Ninth Circuit and takes glee in reversing decisions from the 9th, Steve Reinhardt is the poster child for that meme. An appeal to the Supremes on a decision authored by Reinhardt is like waving a red flag in front of a bull, you are going to get their attention.

And to double the fun here, the threshold question, and really a huge issue that many people discussing the Perry appeal still do not grant enough weight, is the issue of standing on the part of the appellants. Lyle Denniston at SCOTUSBlog has a post from back in August giving a very thorough and easy to understand discussion of the standing issue in Perry. The entire post is worth the read if you are not familiar with the standing issue, but the gist is this:

In both the Ninth Circuit and, if the case goes further, in the Supreme Court, it is now apparent that the resolution of the issue of standing to appeal will turn on how those courts interpret the Supreme Court’s 1997 decision in Arizona for Official English v. Arizona, casting doubt on whether initiative sponsors may appeal to defend a ballot measure when state officials refuse to do so, and the Court’s 1985 ruling in Karcher v. May, suggesting that state legislators may sometimes do so when other state officials refuse, provided state law allows for that. The proponents of the ban on gay marriage, in direct conflict with Judge Walker’s interpretation of California law, argue that state law does give them the right to be in court. California law, they said, makes their case different from the Arizona English initiative case.

And here is where the fun really starts. As I previously indicated, on the merits, you would expect a 2-1 decision upholding Walkers decision in favor og marriage equality and striking down the appeal of the Prop 8Haters. But, before you get to the merits, there is the problem of the standing issue and, as Denniston pointed out, the critical case for that determination will be the Supreme Court decision Arizona for Official English v. Arizona. Know who wrote the circuit court opinion in Arizona for Official English v. Arizona that the Supreme Court slapped down and reversed? Yep, Steve Reinhardt.

So, we have a Circuit Court judge predisposed to find standing in such cases, a Supreme Court predisposed to not care much for said judge’s opinion and a case that may, or may not, be able to be distinguished. Whatever the ruling is in the 9th, the opinion will almost certainly be written by either Reinhardt or Mike Hawkins. Reinhardt has the seniority over Hawkins and the lifetime of work on social justice opinions, if he wants to author the opinion, I think Hawkins will defer to him. The question is, might they decide to have Hawkins author the opinion to pull back on the red flag in front of the SCOTUS bull?

Get your popcorn, and remember that Emptywheel will be covering the oral argument in the 9th Circuit Monday morning December 6th at 10:00 am PST/FDL time and the proceedings will be carried live by CSPAN and other networks.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Mirko is an artist par ecellence in New York who also teaches illustration and design. Please visit Mirko and check out his stock of work, it is really superb.]

Related posts:

  1. Excellent Panel Announced for Perry Prop 8 Appeal
  2. Ballots and the Bench: The Iowa Judges
  3. Will SCOTUS Give Ashcroft Immunity in Ashcroft v. al-Kidd?


Emptywheel

CALIFORNIA: Protect Marriage Files Request For Recusal Of Prop 8 Judge

December 2, 2010 · Posted in The Capitol · Comments Off 

Protect Marriage has filed a formal request for the recusal of Ninth Circuit Court of Appeals Judge Stephen Reindhardt, who is scheduled to be part of the three judge panel hearing the appeal of Proposition 8 on Monday. As I noted yesterday morning, at issue is Reinhardt’s wife and her involvement with the No On 8 campaign via her job with the ACLU.

In papers filed with the 9th U.S. Circuit Court of Appeals in San Francisco, lawyers for Proposition 8′s supporters said Judge Stephen Reinhardt’s “impartiality might reasonably be questioned” because his wife heads the Southern California chapter of the American Civil Liberties Union. In that role, the judge’s wife, Ramona Ripston, has been an outspoken opponent of Proposition 8 and taken part in legal proceedings to overturn the voter-approved law, the lawyers said. They cited the friend of the court brief the ACLU filed on behalf of the plaintiff’s in the case pending before her husband as an example.

According to the above-linked story, Reinhardt has recused himself from past cases involving the ACLU.

Joe. My. God.

Motion Asking Judge Reinhardt to Recuse Himself from the Prop. 8 Case

December 2, 2010 · Posted in The Capitol · Comments Off 

(Eugene Volokh)

Orin blogged yesterday about the suggestion that Judge Reinhardt recuse himself from the Prop. 8 case, so I thought it would be helpful to post the motion that was just filed with such a request. Here’s the Statement from the start of the motion (with most citations omitted), which summarizes the argument, though please read the whole thing if you’re interested in the issue:

On November 28, 2010, this Court identified Circuit Judges Reinhardt, Hawkins, and N.R. Smith as the members of the panel assigned to this case. Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”). As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California. ACLU/SC 2007–2008 Annual Report 24, at http://www.aclu-sc.org/downloads/9/204927.pdf. ACLU/SC represented several same-sex couples and organizations in In re Marriage Cases, in which the California Supreme Court held that California’s pre-Proposition 8 statutory definition of marriage as the union of a man and a woman violated the State Constitution.

Following that decision, ACLU/SC put Proposition 8 “at the forefront of [its] civil-rights agenda, sparing no effort to defeat Prop. 8 [and] challenge its passage.” ACLU/SC 2008–2009 Annual Report 8, at http://www.aclusc.org/documents/view/223. After Proposition 8’s passage ACLU/SC represented petitioners before the California Supreme Court in Strauss v. Horton, the unsuccessful state-law challenge to the validity of Proposition 8. The same day the California Supreme Court issued its decision in Strauss, Ms. Ripston issued a public statement on behalf of ACLU/SC, vowing that “[a] renewed effort to overturn Proposition 8 begins today.” Ms. Ripston later signed a letter on behalf of ACLU/SC explaining that as part of that effort, “LGBT people and our closest allies are first going to have to talk to close friends and family about … why this fight [for same-sex marriage] matters. Even if those people are already on our side, we need to talk to them to convince them to join the fight.”

ACLU/SC has taken an active role in this litigation. It appears that Plaintiffs’ attorneys engaged in “confidential discussions” with Ms. Ripston and ACLU/SC’s legal director before filing this lawsuit. See Chuleenan Svetvilas, Challenging Prop 8: The Hidden Story, CALIFORNIA LAWYER, Jan. 2010, at http://www.callawyer.com/story.cfm?eid=906575&evid=1. And ACLU/SC has been actively involved in this very case. Indeed, it represented, as counsel in the court below, parties seeking to intervene as plaintiffs, see Our Family Coalition et al. Motion to Intervene as Party Plaintiffs, Doc. No. 79 at 2 (July 8, 2009), and amici urging the court to decide the case in favor of Plaintiffs and to rule that Proposition 8 is unconstitutional. See Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 62 at 2 (June 25, 2009); Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 552 at 2 (Feb. 3, 2010). [footnote 3]

[Footnote 3:] Indeed, in the accompanying motions for leave to file these amicus briefs, the statement of amici interest specifically lists ACLU/SC as an affiliate of an amicus curiae. See Motion for Leave to File Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 61 at 3 (June 25, 2009) (identifying “the ACLU Foundation of Southern California” as one of “the three California affiliates of the ACLU”); Motion for Leave to File Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 551 at 3 (Feb. 3, 2010) (same).

When the district court issued the ruling under review in this Court, the ACLU issued a public statement praising the decision and emphasizing that the ACLU, along with two other groups, had “filed two friend-of-the-court briefs in the case supporting the argument that Proposition 8 is unconstitutional.” The press release quoted Ms. Ripston as “rejoic[ing]” in the decision striking down Proposition 8, asserting that it “affirms that in America we don’t treat people differently based on their sexual orientation.” Ms. Ripston’s statement was reported in the national media. At the same time, Ms. Ripston stated that the district court’s ruling was not the end of the matter, emphasizing that “it’s a long road ahead until final victory.” Specifically, as one of her colleagues put it in the same public statement, “[i]n order to give this case the best possible chance of success as it moves through the appeals courts, we need to show that America is ready for same-sex couples to marry by continuing to seek marriage and other relationship protections in states across the country” (emphasis added).

Naturally, if there’s a response filed (or some rebuttal published by someone who is not a party), I’d be delighted to link to it as well. I don’t have a fixed view on what the right result is, since I’m not an expert on this aspect of judicial recusal law, but I thought it was worth linking to the legal argument.




The Volokh Conspiracy

Left-liberal panel to review Prop 8 decision, but disqualification issue looms

November 30, 2010 · Posted in The Capitol · Comment 

(Paul)

The Ninth Circuit has selected the panel that will hear the appeal of the ruling striking down California’s Proposition 8, which provides that “only marriage between a man and a woman is valid or recognized in California.” The panel consists of Judges Stephen Reinhardt, Michael Hawkins, and N. Randy Smith.

Judge Reinhardt is perhaps the most notoriously activist left-wing federal appeals court judge in the land. And, according to Ed Whelan, Judge Hawkins isn’t too far behind. Judge Smith was appointed by President George W. Bush and has been on the Court since 2007.

The opponents of Prop 8 have certainly been riding their luck so far. First they drew a gay district court judge; now they draw two liberal activist appellate judges.

Whelan argues, however, the Judge Reinhardt is obligated to disqualify himself from the panel. He points out that Reinhardt’s wife, Ramona Ripston, executive director of the American Civil Liberties Union of Southern California, reportedly consulted with the plaintiffs’ lawyers about the decision to bring the case at hand.

The Code of Conduct for United States Judges requires that a judge “disqualify himself … in a proceeding in which the judge’s impartiality might reasonably be questioned.” How, Whelan asks, is it possible that Reinhardt’s impartiality in this case couldn’t reasonably be questioned when his wife took part in confidential discussions with plaintiffs’ lawyers over whether they should pursue the case?




Power Line

Prop 8 Update

November 29, 2010 · Posted in The Capitol · Comment 

Bmaz at Empty Wheel sizes up the judges who will hear the Prop 8 appeal:

The bottom line is, early odds are on a 2-1 decision upholding Judge Vaughn Walker’s fine decision in Perry. The one stumbling block, of course, is the issue of standing, and on that I still have some concern that [Judge Mike] Hawkins, who can be a stickler on procedural details, might align with [Judge N. Randy] Smith to hold that there is no standing on the appeal. So, while there are still problems with the standing issue and therefore there should be no premature wild celebrations today, it is nevertheless a very favorable panel the Perry appeal has drawn. For that, there should be some joy.





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The Daily Dish | By Andrew Sullivan

Ninth Circuit Panel for Prop 8 Case

November 29, 2010 · Posted in The Capitol · Comment 

(Dale Carpenter)

The panel hearing the Prop 8 appeal on December 6 will be Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith. It’s a good draw for opponents of Prop 8. The two issues on appeal are whether the Prop 8 proponents have standing to appeal and, if so, whether Judge Vaughn Walker correctly held the anti-gay marriage initiave unconstitutional.

(HT: Rex Wockner)




The Volokh Conspiracy

Excellent Panel Announced for Perry Prop 8 Appeal

November 29, 2010 · Posted in The Capitol · Comment 

When the appeal in Perry v. Scwarzenegger was initially lodged, I put forth the possibility that the panel assigned to hear the full merits appeal in December might be the earlier panel of Judges Wardlaw, Fisher and Berzon, which had heard substantive interlocutory appeals from the trial portion of the case when it was in Judge Vaughn Walker’s court. This was an exciting possibility as it would be a very favorable panel. That is not to be; however, the panel just announced that will hear the merits appeal on the morning of December 6 is very good and favorable to upholding Judge Walker’s seminal ruling.

Today it was announced the panel will consists of Judges Stephen Reinhardt, Michael Hawkins and N. Robert Smith. Stephen Reinhardt is the living epitome of an old school dyed in the wool liberal; you simply could not ask for a better man. Mike Hawkins is also an excellent judge and, although not quite as liberal as Reinhardt, should be expected to have little patience for the poorly fleshed out case the defendant-intervenors put on in the trial in front of Walker or that they belligerently reargue on appeal as if they never lost. N. Randy Smith, on the other hand, is a very conservative judge from Idaho, of Brigham Young University heritage both undergraduate and law school, and was appointed by George W. Bush. Smith is not so promising.

The bottom line is, early odds are on a 2-1 decision upholding Judge Vaughn Walker’s fine decision in Perry. The one stumbling block, of course, is the issue of standing, and on that I still have some concern that Hawkins, who can be a stickler on procedural details, might align with Smith to hold that there is no standing on the appeal. So, while there are still problems with the standing issue and therefore there should be no premature wild celebrations today, it is nevertheless a very favorable panel the Perry appeal has drawn. For that, there should be some joy.

As a reminder, the oral argument on the Perry appeal is scheduled for 10:00 am PST Monday December 6, 2010 - one week from today. Marcy and I will be live blogging it and, incredibly, it is currently set to be televised on, among other stations, CSPAN. So, one and all can watch this historic argument and join in the discussion!

Related posts:

  1. Hamdan Gets A Full Panel Review
  2. Shorter DC Circuit: Yeah, Rogers Brown and Kavanaugh Are Extremists
  3. With Kagan On SCOTUS, We Are Still Down A Justice


Emptywheel

Breaking: Prop 8 Arguments Will Be Televised LIVE

November 18, 2010 · Posted in The Capitol · Comment 

American Foundation For Equal Rights (AFER) reports the Ninth Circuit says the Prop 8 oral arguments will be televised live on December 6.

Scheduled to begin at 10:00 AM on C-SPAN.

Stay tuned!

Related posts:

  1. Breaking: Prop 8 Trial Closing Arguments Set For June 16
  2. Here’s How To Follow Today’s Prop 8 Trial Closing Arguments
  3. Ted Olson’s Best Quotes From Prop 8′s Closing Arguments




The New Civil Rights Movement

Could Prop 19 Have Passed In 2008?

November 8, 2010 · Posted in The Capitol · Comment 

Mike Meno highlights a new poll:

  • 50 percent of California voters believe the use of marijuana should be made legal, regardless of their feelings on Prop. 19.
  • 52 percent of voters believe our marijuana laws do more harm than good, agreeing that, “Like alcohol prohibition, laws against marijuana do more harm than good.” Only 37 percent disagreed with this statement.
  • 31 percent of people who voted “no” on Prop. 19 believe marijuana should be legal, and agreed to the statement, “I believe marijuana should be legalized or penalties for marijuana should be reduced, but I opposed some of the specifics of Proposition 19.”
  • 44 percent of voters believe legalization is inevitable, including 25 percent who voted against Prop. 19.

Also:

The survey’s most striking find is that if youth voters had turned out last week in the numbers they typically do during a presidential election year, Proposition 19 would have been statistically tied, with 49 percent voting yes to 51 voting no.

Paul Armentano brings us some less happy news: anti-marijuana California Attorney General candidate Steve Cooley has pulled ahead in the vote count.





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The Daily Dish | By Andrew Sullivan

The Other Big Prop In California, Ctd

November 5, 2010 · Posted in The Capitol · Comment 

CA_ba

A reader writes:

I disagree with the reader who claims that "there is no way to take the politics out of whatever district boundary decision is made." It becomes possible when you allow a computer to do it automatically without human intervention. Here, for example, is a website that generates new districts from existing schemes. And there are alternatives to having boundaries in the first place, such as multi-member districts and proportional representation (not that I expect any of these to catch on soon in the US!)

Another writes:

I was one of the finalists for the Citizen's Redistricting Commission, and I take issue with your reader's contention that the legislators should be drawing the districts.

That's an inherent conflict of interest; legislators draw districts so as to preserve their own jobs. Oh, they're legislators, so they're accountable? After they've drawn the districts to make voting them out nearly impossible? Please.

I live in the Santa Cruz area of California, where we haven't had a local representative since the last redistricting split up our area. Our current representative lives hundreds of miles away and never even visits the Santa Cruz area. This is representation?

Certainly it's impossible to draw districts to satisfy everyone. There will always be complaints from some group or other that their vote was diluted. But at least the process should be taken out of the hands of people who get a direct financial benefit from how they draw the districts. The people of California seem to agree, as the propositions to expand the power of the redistricting commission won by a huge margin, and the effort to destroy the commission failed by an equal margin.

I think this is an important step towards getting a little more sanity in government, and I hope other states follow suit.

Another:

So while most of the truly ridiculous district shapes are the result of manipulating the demographics of a district, sometimes the reasoning is explicitly political. Case in point: the Pennsylvania 1st, home of Congressman (and City Democratic boss) Bob Brady. The 1st isn't as bizarre as some of the shapes in PA, but one tiny piece, the S-shaped arm just above the "Philadelphia" dot, has a fun story.

As the urban legend goes (and we Philadelphians love our urban legends), that tiny arm of the 1st was added to capture the brownstone mansion of now-incarcerated State Senator Vince Fumo. Apparently, Fumo had toyed with the idea of running for Congress, and his home west of Broad Street would put him up against Rep. Chaka Fattah in the 2nd District. But the powers that be moved the line so Fumo would be in Bob Brady's district to keep him from running.

After all, no one crosses Brady, the Mayor of Capitol Hill.

Another:

As much as I enjoy the Daily Dish, this has been one of the few series of posts in which I am personally vested. I live in CA-24, which is Elton Gallegly's district.  Like the first reader I, too, am pleased by the passage of Prop 20, though I share the latter reader's conclusion that redistricting will be every bit as "political."

But I take exception to the latter reader's claim that CA-23 (Lois Capps - D) represents a "community of interest."  Your reader is obviously a political scientist, of the "data tells all" variety.  But to borrow your reader's words, "that [claim] is absurd."  The district was transparently gerrymandered to make my district, CA-24, safe for the long-term — and systematically ineffectual — Republican rubber-stamp Elton Gallegly, whose one legislative achievement in 24 years of congressional service was overturned by the Supreme Court. 

CA-23 was drawn to put Oxnard, California (where whites are only 42% of the population and much of the non-white population is rural labor) and Port Hueneme, California (where whites are only 52% of the population) into a district full of upper-middle-class whites: Santa Barbara (75% white), Montecito (94% white), San Luis Obispo (84% white). Conveniently, CA-23 was also drawn to include all of the local 4-year colleges and universities, save one — CA-23 gets UC-Santa Barbara, California State University-Channel Islands, and California Polytechnic, while CA-24 has California Lutheran University.  So the one specifically "Christian" institution of higher learning goes to the safe Republican seat — hardly coincidental, I should think. CA-23 splits the city of Buenaventura (AKA, Ventura) in half, with the "minority" half of the city in CA-23 and the white half in CA-24 (the Republican district).  

Why gerrymander like this?  Isn't it obvious?  The minority/working class vote gets diluted into a district that is heavily white and upper-middle-class, but which is also full of beach community types ("hippies") and college students and faculty (all liberals, of course). That hardly constitutes a "community of interest."

Another reason to gerrymander in this way, of course, would be to avoid foisting on the Republican representative a group of constituents who might have desires or needs that run contrary to Tea Party ideology.

On the other hand, CA-24 was transparently gerrymandered to put all the presumably pro-Republican votes of the military into the safe Republican district, rather than make them "compete" with the more-populous liberal vote of the Santa Barbara coastal communities.

In this area we have four military installations: Vandenberg Air Force Base, Channel Islands Air National Guard Base, and two formerly independent Navy facilitiess, Naval Construction-Battalion Center Port Hueneme and Naval Missile Test Center Point Mugu.  The former is training center of the "Seabees" and the latter is an aerospace testing center which also includes on its ground the Channel Islands Air National Guard base.  Vandenberg AFB is still an independent installation, whereas the other three were all combined into "Naval Base Ventura County" at the last Base Realignment and Closure Commission round.

Like the city of Ventura, Naval Base Ventura County is split between CA-23 and CA-24.  Capps, the Democrat, has in her district the Port Hueneme part of the base, where many of the personnel are trainees at the Naval Construction Training Center  — in other words, transient personnel who will graduate from Seabee training and move on to other assignments.  Personnel who don't vote in California elections.  Personnel in the permanent units assigned to the base, like the Naval Mobile Construction Battalions, live in surrounding parts of the community, the entirety of which is in CA-24, since the city of Port Hueneme itself is only 4 square miles in size.

The Point Mugu/Channel Islands part of the installation, on the other hand, goes to Gallegly, the Republican.  These are "permanent party" military personnel, who live in the community, all of which (again) is in CA-24.  In other words, they are military personnel who do vote in California elections.

Vandenberg Air Force Base, on the other hand, is 102 miles from Port Hueneme, in Lompoc, California, geographically well into the area covered by the Democratic CA-24.   Miraculously, Vandenberg Village is just several hundred yards outside of the easternmost border of the 23rd district, safely in the hands of the Republican:

Screen shot 2010-11-04 at 10.02.38 AM

I don't know if a panel of "civilians" would necessarily ameliorate this situation, but I don't see that it could make it much worse.  CA-23 is proportionally one of the thinnest, smallest congressional districts in the U.S.  Nearly 46% of the registered electorate in this county is Democratic, but we have been "represented" in Congress for two decades by a tenured absentee landlord who speaks only at the Reagan Library and other safe conservative venues, who refuses to debate his opponents, who has for over 20 years waged a Quixotic campaign against "illegal" immigrants, who would lower the bar on death penalty prosecutions nearly to the level of absurdity, and whose most important legislative achievement - banning the sale of sex fetish videos that feature animal cruelty - while well-intentioned was (a) overturned by the Supreme Court and (b) hardly addressed an important issue of the day. Maybe I'm just foolish, but this doesn't feel like "representation" to me.

Thanks for letting me vent.





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The Daily Dish | By Andrew Sullivan

Why Did Prop 19 Fail? Ctd

November 5, 2010 · Posted in The Capitol · Comment 

Scott Morgan's two cents:

The bottom line is that this was not a presidential election year. Doing this campaign in a midterm election put us at a significant disadvantage. When the White House is up for grabs, young voters turn out in huge numbers, guaranteeing big points for an issue like marijuana reform. This means we could likely win by running basically the same campaign in 2012. It's really important that we emphasize this fact as much as possible, because we don't want anyone underestimating public support for legalization. Tell your friends: we lost because of timing, not lack of public support.





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The Daily Dish | By Andrew Sullivan

“There Will Be Change Awfully Soon”: Prop 19 Reax III

November 5, 2010 · Posted in The Capitol · Comment 

A reader writes:

As a California resident, I have personally been exposed to many of the Prop 19 reactions you have been posting. However, the prospect of some kid rotting in jail the rest of his live because of a pot bust in California just ain't gonna happen, due to Schwarzeneggar's signing of the decriminalization law last month. I think that took wind out of the sails of Prop 19, and made it easier for many folks (parents of young kids especially) to vote against it. 

Another writes:

While I think there are reasons for some optimism even in the wake of Prop 19's failure, the California decriminalization isn't one of them - it's a reinforcement of the worst parts of prohibition masquerading as progress.

What it would mean to me, if I was a non-medical marijuana user in California, is that if I was caught with an ounce of pot I'd bought illegally from some murderous Mexican cartel I'd get off with a fine, but if I sprouted a single seed in my home I'd go to prison. That said, I think Prop 19 still did a lot of good, both in lessons in how not to try to legalize and in making the discussion more open and mainstream.

I think the future of legalization might actually be here in Colorado; there's some chance a bill could be put up here in 2012 and I think it's a better place to try than California. Colorado is the only state right now that has a large and thriving legal marijuana industry that's licensed and regulated by the state. The state just made seven or eight million dollars from its first round of medical marijuana center - the official term now, not dispensary - applications, and we'll have had three years of that income by November 2012.

Our conservatives are a little bit more libertarian, our liberals are a little more pragmatic, an entire third of our electorate doesn't want to be identified with either party, and our new governor-elect was mayor of Denver while the medical marijuana boom happened. It's also much cheaper to run a statewide campaign here. I think in a presidential year with a good campaign it could pass.

Another:

Here in San Francisco, of course I know many people who voted in favor. But many who I thought would do so said they didn't. Quite a few had the same reason: that is would still be illegal under federal law.

They thought it made no sense to create such a dichotomy and that it would lead to all kinds of legal confusion and problems without making marijuana truly legal. Despite being fine with people legally smoking pot, they thought this would not accomplish that and just create more problems for the state, especially after Eric Holder told us that he would prosecute, unlike with medical marijuana. If the federal government had no role in this and it were entirely up to the states, I think it would be much easier to get legalization passed here.

Furthermore, people elsewhere may not be aware that the current medical marijuana laws already effectively make recreational use legal. There are ads everywhere for cheap Internet prescriptions. Anyone who currently wants to use pot both recreationally and legally is presented with no real obstacle - just sign up for a prescription 24/7 on the Web for a few dollars.

Lastly, current "medical" users often opposed Prop 19 because they said it would take away their rights to smoke in public and smoke in the presence of minors, among other things (see here). The stoner community seemed very opposed to the whole thing.

Another:

Illegal pot is doomed in the long term - demographically that is. My wife and I had dinner last night with two Republicans friends (one country club, one more theocon). My wife and I are liberal. All four of us are 27, and all four of us thought it was silly that Prop 19 wasn’t passed and hoped that pot would be legalized. None of us are users, so we don’t really even have a dog in the fight. I see us as a good cross-section of American political thought as any four people could be (though we’re all white, for what it's worth) and we all agree that prohibition is pointless and a waste of effort and resources.

Some of your readers have said that Prop 19 wasn’t the right path to legalization. That might be true if they didn’t get the specific polices right. But people should continue to evolve the policy solution, because there will be a electoral majority for this type of change awfully soon.

Another:

Lack of youth turnout doomed Prop 19 in the 2010 midterms. Legalization folks are planning for 2012, not 2014, because of the better chances at a youth vote in national election years. The only thing I could think of that would get such large numbers of Democratic voters to the 2014 midterm polls would be as a protest against President Palin. If that happens, we have bigger things to worry about than pot.





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The Daily Dish | By Andrew Sullivan

“There Will Be Change Awfully Soon”: Prop 19 Reax III

November 5, 2010 · Posted in The Capitol · Comment 

A reader writes:

As a California resident, I have personally been exposed to many of the Prop 19 reactions you have been posting. However, the prospect of some kid rotting in jail the rest of his live because of a pot bust in California just ain't gonna happen, due to Schwarzeneggar's signing of the decriminalization law last month. I think that took wind out of the sails of Prop 19, and made it easier for many folks (parents of young kids especially) to vote against it. 

Another writes:

While I think there are reasons for some optimism even in the wake of Prop 19's failure, the California decriminalization isn't one of them - it's a reinforcement of the worst parts of prohibition masquerading as progress.

What it would mean to me, if I was a non-medical marijuana user in California, is that if I was caught with an ounce of pot I'd bought illegally from some murderous Mexican cartel I'd get off with a fine, but if I sprouted a single seed in my home I'd go to prison. That said, I think Prop 19 still did a lot of good, both in lessons in how not to try to legalize and in making the discussion more open and mainstream.

I think the future of legalization might actually be here in Colorado; there's some chance a bill could be put up here in 2012 and I think it's a better place to try than California. Colorado is the only state right now that has a large and thriving legal marijuana industry that's licensed and regulated by the state. The state just made seven or eight million dollars from its first round of medical marijuana center - the official term now, not dispensary - applications, and we'll have had three years of that income by November 2012.

Our conservatives are a little bit more libertarian, our liberals are a little more pragmatic, an entire third of our electorate doesn't want to be identified with either party, and our new governor-elect was mayor of Denver while the medical marijuana boom happened. It's also much cheaper to run a statewide campaign here. I think in a presidential year with a good campaign it could pass.

Another:

Here in San Francisco, of course I know many people who voted in favor. But many who I thought would do so said they didn't. Quite a few had the same reason: that is would still be illegal under federal law.

They thought it made no sense to create such a dichotomy and that it would lead to all kinds of legal confusion and problems without making marijuana truly legal. Despite being fine with people legally smoking pot, they thought this would not accomplish that and just create more problems for the state, especially after Eric Holder told us that he would prosecute, unlike with medical marijuana. If the federal government had no role in this and it were entirely up to the states, I think it would be much easier to get legalization passed here.

Furthermore, people elsewhere may not be aware that the current medical marijuana laws already effectively make recreational use legal. There are ads everywhere for cheap Internet prescriptions. Anyone who currently wants to use pot both recreationally and legally is presented with no real obstacle - just sign up for a prescription 24/7 on the Web for a few dollars.

Lastly, current "medical" users often opposed Prop 19 because they said it would take away their rights to smoke in public and smoke in the presence of minors, among other things (see here). The stoner community seemed very opposed to the whole thing.

Another:

Illegal pot is doomed in the long term - demographically that is. My wife and I had dinner last night with two Republicans friends (one country club, one more theocon). My wife and I are liberal. All four of us are 27, and all four of us thought it was silly that Prop 19 wasn’t passed and hoped that pot would be legalized. None of us are users, so we don’t really even have a dog in the fight. I see us as a good cross-section of American political thought as any four people could be (though we’re all white, for what it's worth) and we all agree that prohibition is pointless and a waste of effort and resources.

Some of your readers have said that Prop 19 wasn’t the right path to legalization. That might be true if they didn’t get the specific polices right. But people should continue to evolve the policy solution, because there will be a electoral majority for this type of change awfully soon.

Another:

Lack of youth turnout doomed Prop 19 in the 2010 midterms. Legalization folks are planning for 2012, not 2014, because of the better chances at a youth vote in national election years. The only thing I could think of that would get such large numbers of Democratic voters to the 2014 midterm polls would be as a protest against President Palin. If that happens, we have bigger things to worry about than pot.





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The Daily Dish | By Andrew Sullivan

“There Will Be Change Awfully Soon”: Prop 19 Reax III

November 5, 2010 · Posted in The Capitol · Comment 

A reader writes:

As a California resident, I have personally been exposed to many of the Prop 19 reactions you have been posting. However, the prospect of some kid rotting in jail the rest of his live because of a pot bust in California just ain't gonna happen, due to Schwarzeneggar's signing of the decriminalization law last month. I think that took wind out of the sails of Prop 19, and made it easier for many folks (parents of young kids especially) to vote against it. 

Another writes:

While I think there are reasons for some optimism even in the wake of Prop 19's failure, the California decriminalization isn't one of them - it's a reinforcement of the worst parts of prohibition masquerading as progress.

What it would mean to me, if I was a non-medical marijuana user in California, is that if I was caught with an ounce of pot I'd bought illegally from some murderous Mexican cartel I'd get off with a fine, but if I sprouted a single seed in my home I'd go to prison. That said, I think Prop 19 still did a lot of good, both in lessons in how not to try to legalize and in making the discussion more open and mainstream.

I think the future of legalization might actually be here in Colorado; there's some chance a bill could be put up here in 2012 and I think it's a better place to try than California. Colorado is the only state right now that has a large and thriving legal marijuana industry that's licensed and regulated by the state. The state just made seven or eight million dollars from its first round of medical marijuana center - the official term now, not dispensary - applications, and we'll have had three years of that income by November 2012.

Our conservatives are a little bit more libertarian, our liberals are a little more pragmatic, an entire third of our electorate doesn't want to be identified with either party, and our new governor-elect was mayor of Denver while the medical marijuana boom happened. It's also much cheaper to run a statewide campaign here. I think in a presidential year with a good campaign it could pass.

Another:

Here in San Francisco, of course I know many people who voted in favor. But many who I thought would do so said they didn't. Quite a few had the same reason: that is would still be illegal under federal law.

They thought it made no sense to create such a dichotomy and that it would lead to all kinds of legal confusion and problems without making marijuana truly legal. Despite being fine with people legally smoking pot, they thought this would not accomplish that and just create more problems for the state, especially after Eric Holder told us that he would prosecute, unlike with medical marijuana. If the federal government had no role in this and it were entirely up to the states, I think it would be much easier to get legalization passed here.

Furthermore, people elsewhere may not be aware that the current medical marijuana laws already effectively make recreational use legal. There are ads everywhere for cheap Internet prescriptions. Anyone who currently wants to use pot both recreationally and legally is presented with no real obstacle - just sign up for a prescription 24/7 on the Web for a few dollars.

Lastly, current "medical" users often opposed Prop 19 because they said it would take away their rights to smoke in public and smoke in the presence of minors, among other things (see here). The stoner community seemed very opposed to the whole thing.

Another:

Illegal pot is doomed in the long term - demographically that is. My wife and I had dinner last night with two Republicans friends (one country club, one more theocon). My wife and I are liberal. All four of us are 27, and all four of us thought it was silly that Prop 19 wasn’t passed and hoped that pot would be legalized. None of us are users, so we don’t really even have a dog in the fight. I see us as a good cross-section of American political thought as any four people could be (though we’re all white, for what it's worth) and we all agree that prohibition is pointless and a waste of effort and resources.

Some of your readers have said that Prop 19 wasn’t the right path to legalization. That might be true if they didn’t get the specific polices right. But people should continue to evolve the policy solution, because there will be a electoral majority for this type of change awfully soon.

Another:

Lack of youth turnout doomed Prop 19 in the 2010 midterms. Legalization folks are planning for 2012, not 2014, because of the better chances at a youth vote in national election years. The only thing I could think of that would get such large numbers of Democratic voters to the 2014 midterm polls would be as a protest against President Palin. If that happens, we have bigger things to worry about than pot.





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