Constitutional Law Prof Blog

Kagan Confirmation Hearing: Material from the Senate Judiciary Committee

The confirmation hearing of Elena Kagan to be an Associate Justice of the United States Supreme Court begins Monday, June 28, 2010, at 12.30pm.

The Senate Judiciary Committee has released the witness list:

American Bar Association Witnesses
Kim Askew, Chair of Standing Committee
William J. Kayatta, Jr., First Circuit Representative

 Majority Witnesses
Professor Robert C. Clark, Harvard University Distinguished Service Professor, Austin Wakeman Scott Professor of Law, and former Dean, Harvard Law School
Justice Fernande "Nan" Duffly, Associate Justice, Massachusetts Court of Appeals, on behalf of the National Association of Women Judges
Greg Garre, Partner, Lathan & Watkins, former Solicitor General of the United States
Jennifer Gibbins, Executive Director, Prince William Soundkeeper
Professor Jack Goldsmith, Professor of Law, Harvard University
Marcia Greenberger, Founder and Co-President, National Women's Law Center
Jack Gross, plaintiff, Gross v. FBL Financial Services Inc.
Lilly Ledbetter, plaintiff, Ledbetter v. Goodyear Tire
Professor Ronald Sullivan, Edward R. Johnston Lecturer on Law, Director of the Criminal Justice Institute, Harvard law School
Kurt White, President, Harvard Law Armed Forces Association

Minority Witnesses
Robert Alt, Senior Fellow and Deputy Director, Center for Legal and Judicial Studies, The Heritage Foundation
Lt. Gen. William "Jerry" Boykin, United States Army (ret.)
Capt. Pete Hegseth, Army National Guard
Commissioner Peter Kirsanow, Benesch Law Firm
David Kopel, Esq., Research Director, Independence Institute
Colonel Thomas N. Moe, United States Air Force (ret.)
David Norcross, Esq., Blank Rome
William J. Olson, Esq., William J. Olson, P.C.
Tony Perkins, President, Family Research Council
Stephen Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law
Ronald Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law
Ed Whelan, President, Ethics and Public Policy Center
Dr. Charmaine Yoest, President & CEO, Americans United for Life
Capt. Flagg Youngblood, United States Army

 

In addition to its "noteworthy" sidebar (above right) making it clear that Kagan would be the fourth woman to serve on the Supreme Court if she is confirmed, the Senate Judiciary Committee website also includes the following materials relevant to the Kagan nomination and hearing:

Nomination and Hearing Materials, Information and Guidance

• Committee Questionnaire and Related Materials
  

• Solicitor General Nomination Materials

• Letters and Materials Sent and Received in Connection with the Nomination
  

• Media Guidelines for the Nomination Hearing of Elena Kagan
  

• Public Attendance Guidelines at the Nomination Hearing of Elena Kagan

RR

 

Al Franken at American Constitution Society National Convention

In a speech at the American Constitution Society National Convention, Senator Al Franken sharply criticized the Roberts Court and the Federalist Society. 

Franken's remarks are available in transcript; audio; and video at the ACS website.

While Franken acknowledges he is "one of the few non-lawyers in the room," and not an academic,  he nevertheless delves into constitutional theory and recent cases to support his point that the Court's decisions matter to "ordinary people."   He disavows originalism by linking it with Robert Bork and ultimately concludes: "Originalism isn't a pillar of our Constitutional history.  It's a talking point."  He critiques Roberts' "judges as umpires" metaphor with reference to a case by the Louisiana Supreme Court in 1866.  He discusses cases such as Lochner and Citizens United, but also Stoneridge, Conkright, Leegin, Iqbal, Exxon, Rapanos, Circuit City, and Ledbetter.  He also mentions recent proposals to "prioritize" internet service and how that might impact the flow of information.

For those teaching summer school - - - perhaps a comparative constitutional law course outside of the States?? or a legal theory course for non-law students?? - - - this could be the foundation of a good class exercise.  One could assign students to write a response or to select one of Franken's points and fully support it.

RR

Federalist Society Launches Supreme Court Nomination Site

SCOTUSreport is a new site from the Federalist Society.    

The site seeks to "collect in one place the key news and documents, as well as commentary from across the legal, political and philosophical spectrum, regarding the upcoming Supreme Court nomination."

RR

SALT: The Society of American Law Teachers New Blog

 

SALTLAW is the new blog of SALT, Society of American Law Teachers, self-described as a "community of progressive law teachers working for justice, diversity and academic excellence."

SALT  is known for its  teaching conferences, its  activism on behalf of social justice issues including those in constitutional law, and its members, including those featured on the blog: Angela Harris (pictured left) and Rhonda Copelon (pictured right). 

The blog announcement makes clear that the "blog is not a forum for the expression of SALT’s positions, but a place where our members can publish commentary on emerging issues in law, politics, and education or where they can develop arguments about policies and problems that are persistent or seem intractable.  The SALT Board has no list of topics that should be addressed or any agenda that it has set for this blog."

Instead, the plan is a "year-long schedule of regular and guest contributors who will add voice to progressive issues" and will "include both legal and non-legal issues"  ranging from "conversations about the economic crisis to questions about U.S. torture policies to discussions about the lack of diversity in baseball management to the development of a hip-hop theory of justice."

The roster of planned bloggers is an impressive one featuring many ConLawProfs.   

RR

Constitutional Rights for Guantanamo Detainees under the Canadian Charter?

The Canadian Charter of Rights and Freedoms, section 7 provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

But does “everyone” mean “everyone,” including those Canadians detained at Guantanamo Bay?

As excellent post by Canadian law student Daniel Del Gobbo at "The Court" (a blawg on the Canadian Supreme Court)" reviews the recent Canadian Supreme Court jurisprudence.  As Del Gobbo notes, “everyone” has been previously found to include non-Canadians claiming Charter protections abroad where circumstances establish a nexus with Canada, and the plain language of section 7 extends its protection to “everyone”, not just citizens. 

However, as Justice L’Heureux-Dubé rather sardonically observed in R. v. Cook, [1998] 2 S.C.R. 597, “I am not convinced that passage of the Charter necessarily gave rights to everyone in the world, of every nationality, wherever they may be, even if certain rights contain the word ‘everyone’.”

Del Gobbo goes on to discuss the jurisprudence relating to section 7's applicability to Canadians detained at Guantanamo Bay including Canadian Supreme Court's recent denial of leave to appeal in Slahi v. Canada (Justice) and Canada (Prime Minister) v. Khadr.  More on Slahi here; on Khadr here.

RR

Perry v. Schwarzenegger, Prop 8 Trial: The Re-enactment

The United States Supreme Court may have blocked the actual broadcast of the Proposition 8 trial, but the enterprising folks behind www.marriagetrial.com are re-enacting the trial, using the transcripts and the reports from bloggers and tweeters.

The "episodes" will be available on YouTube.  Here is the trailer:

RR

Perry v. Schwarzenegger, Prop 8 Trial RECAP

Easy access in chronological order to our posts on the Proposition 8 trial is available:

A Primer (January 11, 2010):

The well-publicized trial on the constitutionality of California’s Proposition 8 banning same-sex marriage begins today before Judge Vaughn Walker in the United States District Court for the Northern District of California (court website for case here). Recall that the California Supreme Court upheld Proposition 8 as we previously discussed here.  Publicity of this federal trial has itself been an issue: SCOTUS has just stayed the order that the court's trial proceedings were to be made available on You Tube.  

Update: Live blogging of proceedings from anti-Prop 8 perspective here.

Although there are some statements in the press that this is the first same-sex marriage trial, that’s not exactly true.  After the Hawaii Supreme Court decision in Baehr v. Lewin, state court judge Kevin Chang held a trial on the issue of whether the state had compelling reasons to prohibit same-sex marriage.  In an extensive Order in late 1996, Judge Chang held that the state failed to satisfy its burden of showing compelling interests and that the law was therefore unconstitutional.  This order was later stayed because of developments in Hawaii.

But certainly this is the first federal trial.  Interestingly, counsel for plaintiffs in the case are outside the usual LGBT movement, but are Theodore Olsen and David Boies, the attorneys who represented Bush and Gore respectively in Bush v. Gore.  Also interestingly, the state of California is not defending the lawsuit (Governor Schwarzenegger has taken no position and Attorney General Jerry Brown supports the plaintiffs).   California’s position is therefore being argued by intervenors including protectmarriage.com, who the trial judge described as the “proponents” of Proposition 8.  A New Yorker article published today discusses the attorneys, the parties, and some of the arguments.

The best description of the issues to be determined at trial is in Judge Vaughn Walker’s from-the-bench order denying the motion for summary judgment filed by the proponents of Proposition 8 (transcript available here; order at pages 72- 91).

Judge Walker (pictured), Chief Judge of the Northern District of California, states that he cannot determine that the due process claims are foreclosed because although the government interests that Proposition 8 fosters may be "akin to a legislative fact," "embedded within such a legislative fact are certain assumptions about human behavior and relationships that have simply not been developed in the record."

On the equal protection claim, Judge Walker ruled that there are genuine issues of fact concerning the level of scrutiny to be applied.  He ruled that a sex/gender discrimination was no foreclosed as a matter of law.  He also ruled that the level of scrutiny to be applied to sexual orientation was also not determined, holding that while the proponents seem to accept that gays and lesbians have faced discrimination and "contribute equally to society," there remains material issues of fact on the Carolene products factors of "immutability and political power."  Additionally, Walker decided that whether or not Proposition 8 was enacted with animus remained an issue requiring factual development and specifically rejected the proponents argument that a finding of animus would mean that "everyone who opposes same-sex marriage is a bigot."

Regardless of the level of scrutiny - - - be it intermediate scrutiny based on gender/sex; some form of heightened scrutiny based on a Carolene Products analysis or on a Romer v. Evans analysis of animus; or lowest tier rational basis scrutiny - - - Judge Walker held that there remain material issues of fact both on  whether the actual state interests satisfy the appropriate standard and on whether those interests are actually served by the same-sex marriage ban as measured by the appropriate standard.

Thus, the trial will feature not only the plaintiffs, but a large number of experts. The trial is also expected to  highlight the role of organizations such as protectmarriage.org, one of the proponents, on the issue of animus in the Proposition 8 campaign.

Day Two (January 12, 2010):

The ongoing "Prop 8" trial in California, see our "primer" here, has just completed its second day.

For day one coverage and tweets, see the post with a list from our colleague Steve Saunders on the Sexual Orientation Law blog here, as well as the update from Shannon Minter, of National Center for Lesbian Rights here.

Minter (and others) tweets from day two of the trial are available here.  The testimony included the experts Nancy Cott and George Chauncey.

Professor Nancy Cott (pictured left) is Professor of American History and Pforzheimer Foundation Director of the Schlesinger Library at Harvard University and the author of Public Vows: A History of Marriage and the Nation.  Cott testified and was cross-examined regarding marriage, coveture, polygamy, and the relationship between same-sex marriage and the divorce rate.

Professor George Chauncey (pictured right) is Professor of History at Yale University and the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940, and Why Marriage? The History Shaping Today's Debate over Gay Equality.  Chauncey testified and was cross-examined about the history of sodomy laws, the history of discrimination including in public employment, in the Hollywood codes, and Anita Bryant's crusades in the 1970s, as well as current conditions such as Don't Ask, Don't Tell policy in the military and hate crimes.

Day Three (January 13, 2010): 

The Court declined to allow the broadcast of the trial, reaffirming its stay issued Monday.   Today's Order begins:

We are asked to stay the broadcast of a federal trial.  We resolve that question without expressing any view on whether such trials should be broadcast.  We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.

Justice Breyer, issued a dissenting opinion, joined by Stevens, Ginsburg, and Sotomayor.

Thus, reports of the trial will be by newsmedia and tweets.   As a refresher, our primer on the issues of the case is here.

The day began with the continued cross-examination of George Chauncey, apparently seeking to elicit information that there is stronger support for gays and lesbians now than in the past and that Nancy Pelosi is a “powerful ally.”  This would pertain to the argument regarding gays and lesbians as politically powerless or not for the Carolene analysis of heightened scrutiny, and could also apply to the animus argument for heightened scrutiny.  The redirect focused on the ways in which bias against lesbians and gay men continues.

The next expert witness was Anne Peplau, Professor of Psychology at UCLA.  Peplau is a social psychologist who studies gender and sexual orientation, with a long list of publications.  Her initial testimony stressed the similarity between same-sex and opposite sex couples.

Update: A narrative from National Center for Lesbian Rights' Legal Director Shannon Minter is here; a live blogging summary from Julia Rosen is here.

Teaching Opportunities (January 16, 2010):

The first week of trial testimony has concluded in the first federal trial on the constitutionality of same-sex marriage bans.  Our primer of the case is here, a Q&A for CUNY School of Law here, and our previous discussions of testimony in previous days here and here.  

Thursday and Friday saw more expert witnesses including 

• Edmund Egan, the Chief Economist of the City of San Francisco (the city is an intervenor in the case), who testified that Proposition 8 has had a negative impact on the city's economy and budget;
• Professor Ilan Meyer (pictured right) Mailman School of Public Health, Columbia University, who testified about his research regarding the relationship of minority status, minority identity, prejudice and discrimination and mental health outcomes in sexual minorities and the intersection of minority stressors related to sexual orientation;
• Professor Michael Lamb, Department of Social and Developmental Psychology, Cambridge University UK, who testified about the consequences of denying same-sex marriage to parents given that children in general do better when their parents have adequate social supports such as marriage;
  
• Helen Zia (pictured left) former Executive Director of Ms. Magazine, who testified, over defense objection, regarding her experiences regarding her lesbianism and same-sex marriage.

More specifics about the testimony can be found at the twitter and live-blogging sites previously mentioned, as well as daily synopsis notably from National Center for Lesbian Rights and protectmarriage.com, as well as the excellent live-blogging from Howard Mintz of the Mercury News (starting with day 1 here).

The reporting - - - and widespread student interest - - - in the case provides some wonderful teaching opportunities. Most of the study of constitutional law concentrates on SCOTUS opinions, and highly edited ones at that.  The type of fact analysis necessary for the practice of law, including constitutional law, can be difficult to glean from most SCOTUS opinions.  The Proposition 8 trial coverage (alas not on You Tube, but nevertheless) provides the important perspective of litigating constitutional law at trial.

One could ask students to consider a specific portion of testimony elicited on direct or redirect, or a specific question asked in cross-examination, and answer questions such as the following:

• to what legal argument does it pertain?
• could it be relevant to more than one legal argument? which ones?
• what type of testimony/evidence should the opposing party introduce?
• are there credibility issues with the witness?

This could be a great in-class exercise, a short take-home assignment, or even a multiple choice quiz.

Trial Resumes Today (January 19, 2010):

The challengers to the constitutionality of California's Proposition 8 are expected to rest their case today after almost two weeks of trial. (Our last post, with previous trackbacks including a primer, is here).

Transcripts of the first nine days are here.  Great coverage from our colleague Steve Sanders at Sexual Orientation Prof Blog here.

Last week saw witnesses including:

*    Jerry Sanders, Republican mayor of San Diego, whose testimony (reiterated in his HuffPo column) included discussions about his lesbian daughter who married her partner in Vermont last year;

*    M.V. Lee Badgett, (pictured left) Professor of Economic at Amherst, and author of When Gay People Get Married, whose testimony included the economics of marriage and whether same-sex marriage would have a harmful effect, including an economic effect on opposite-sex marriage.

*    Ryan Kendall, presently employed in law enforcement, testified regarding his family's hostility toward his sexuality. His testimony, admitted over defense objection, was that his family discovered his sexuality when he was 13, forced him to undergo "conversion therapy" to change his sexuality, and became increasingly hostile when the therapy was unsuccessful, causing him to feel suicidal.

*    Gary Segura, Professor of Political Science and chair of Chicana/o Studies at Stanford, (pictured right) testified that GLBT people do not possess a meaningful degree of political power, including stating that religion was a major obstacle to GLBT political advancement and that President Obama was not a reliable ally of GLBT people. On cross-examination, the attorney defending Prop 8 played a video of Obama. Interestingly, at the end of Segura's testimony, Judge Walker reportedly asked Professor Segura whether losing elections or failures to get legislation passed denotes political powerlessness.

*    Hak-Shing William Tam, called by the challengers and cross-examined by Boise as an adverse witness, testified regarding his views of homosexuality, including its link to pedophilia and as destructive to Asian families, as reasons for his activism in favor of Prop. 8. Questioning from the proponents of Prop. 8 sought to distance Tam from protectmarriage.com.

*    Gregory Herek, Professor of Psychology at UC-Davis, was the witness on Friday. He testified on direct that sexual orientation is not chosen and is stigmatized. The cross-examination of Hereck lasted more than five hours, with some discussion of Sigmund Freud's theories.

Also admitted were video depositions of Professors Katherine Young and Paul Nathanson, both at McGill University and co-authors of Legalizing Misandry: From Public Shame to Systemic Discrimination Against Men.  They were originally scheduled to be witnesses for the defendants of Proposition 8.   Transcript excerpts here and here, video excerpts here and here.

If, as expected, the Prop 8 challengers rest their case today, and however quickly the Prop 8 defense attorneys complete their case, a resolution is not expected soon.  Judge Walker is reportedly expected to schedule the closing arguments for several weeks after the trial concludes.

Trial Evidence Ends (January 27, 2010):

The trial proceedings of the Proposition 8 trial ended with the judge's compliments, familiar to anyone who has ever been involved in a federal trial, if slightly modified in this situation:

THE COURT:  Well, I want to extend my congratulations to the lawyers in the case for, obviously, a fascinating case.  Extremely well-presented on both sides. Obviously, there are some old hands in the courtroom in this proceeding.  But I have been particularly struck by the very fine work of many of the younger lawyers in the case, both here in the courtroom and, I'm sure, behind the scenes.

(Laughter)
It really -- the old hands should take great pride and pleasure in the younger colleagues that you've worked with.  They have done a splendid job, and so you have much to be pleased with. And I would just like to take a moment to personally congratulate you and tell you what a good job you've all done.

After thank-you responses from Cooper, Boutrous, and Boies, the “proceedings” of the so-called “Proposition 8” trial were adjourned at twelve noon, on Wednesday January 27, 2010, after twelve (or eleven and a half) days and almost 3,000 pages of transcript, available here.

The  trial had resumed Monday (our last post here) with evidentiary questions and the plaintiffs’ concluding their case with the introduction and playing of videos of simulcasts from the Proposition 8 sponsors, protectmarriage.com, in which the well-known analogies of same-sex marriage to polygamy and bestiality were featured, as well as the less well-known analogy of same-sex marriage to the World Trade Center attacks.

Then the defendant-proponents presentation began.  (As a reminder, the defendants presenting are not the named defendants of the state of California, but the proponents of the Proposition 8 ballot initiative.) The Kenneth Miller (pictured left) associate professor in Government at Claremont McKenna  College.  Miller, who also has a law school degree, is the author of Direct Democracy and the Courts, published last year by Cambridge University Press.  The book asks the very question that is at the heart of the litigation: "Who should have the last word on fundamental policy issues? This book analyzes the rise of two contenders – the people, through direct democracy, and the courts."   The cross examination of Miller by Boies was extensive, centering on Miller's knowledge of LGBT issues and how much such issues have played a part in Miller's work, as well as surfacing some of Miller's criticisms of initiative processes.  

By Tuesday, the Proposition 8 proponents called their second and final witness, David Blankenhorn, (pictured right) the president Institute for American Values and author of Fatherless America. Blankenhorn's testimony on direct was directed to the issue of the universality of opposite sex marriage and the effect on marriage of allowing same-sex couples to marry.  The cross-examination, again by Boies, began late in the day and continued on Wednesday morning. By all accounts this was a rather testy cross-examination, with questions regarding Blankenhorn's qualifications, his knowledge of the literature, and the specificity of his conclusions regarding the effects on traditional marriage.

The closing arguments remain to be scheduled.

RR

Googling Constitutional Law

Google's newest enhancement has the potential to change the way we research constitutional law.

Here's an announcement from the "Official Google Blog"

Starting today, we're enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the "Legal opinions and journals" radio button, and try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptability of "separate but equal" facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.

The blog entry also has this populist proclamation:

As we worked to build this feature, we were struck by how readable and accessible these opinions are. Court opinions don't just describe a decision but also present the reasons that support the decision. In doing so, they explain the intricacies of law in the context of real-life situations. And they often do it in language that is surprisingly straightforward, even for those of us outside the legal profession. In many cases, judges have gone quite a bit out of their way to make complex legal issues easy to follow. For example, in Korematsu v. United States, the Supreme Court justices present a fascinating and easy-to-follow debate on the legality of internment of natural born citizens based on their ancestry.

RR

Secession of Long Island Redux

Could Long Island actually secede from New York? 

Our previous post from May 14 is here.  It seems the Daily Show has caught up with us.  The segment from last night's show (in that typically offensive style) is here: 

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Long Island Wants to Secede
www.thedailyshow.com
Daily Show Full Episodes Political Humor Jason Jones in Iran

RR

Sotomayor Resources through Library of Congress

The Library of Congress has a great resource on Sotomayor with great links here.

RR (with thanks to Bridget Crawford at Feminist Law Professors).

Supreme Court Justice Ideological Profiles

Calculating ideologies is an occupation (some might say an occupational hazard) of political scientists.  According to well known political scientists Andrew Martin and Kevin Quinn, on their website here,

Measuring the relative location of U.S. Supreme Court justices on an ideological continuum allows us to better understand the politics of the high court. In addition, such measures are an important building blocking of statistical models of the Supreme Court, the separation of powers system, and the judicial hierarchy.

Their  "The Ideological History of the United States Supreme Court, 1937 - 2007," provides a graphic representation (with some interactive features and downloadable) of their analysis of the "liberal" and "conservative" ideologies of United States Supreme Court Justices. 

Who is the bluest (most liberal) judge? 

Who is the reddest (most conservative) judge?

There is also a link to a video analysis of "Souter's Leftward Drift."

Of course, for some Constitutional Law Professors, the ascription of "liberal" and "conservative" ideologies and outcomes is not easily reducible to numbers.  While there may be a more-or-less agreed upon assignment of conservative/liberal ideologies in a case such as Roe v. Wade, other cases on the website's timeline such as Boy Scouts of America v. Dale and Kelo v. City of New London may be subject to more dispute. 

RR

Executive Policy by Website: Do changes to whitehouse.gov matter? Don't Ask Don't Tell Changes and Changes Again

According to a few progressive websites, whitehouse.gov has been undergoing some changes and these changes are being "tracked."

For example, Pro Publica has introduced Change Tracker, which lists all additions, deletions, and changes to whitehouse.gov, available here.  (There are also instructions on how to use Change Tracker for other websites). 

On Think Progress and AmericaBlog, reports are that the "civil rights" pages of whitehouse.gov have been rewritten to "walk back" Obama's committment to terminate the "Don't Ask, Don't Tell" policy governing sexual minorities in the military.   According to Think Progress:

The website used to emphasize Obama’s firm commitment to repealing the discriminatory policy:

President Obama agrees with former Chairman of the Joint Chiefs of Staff John Shalikashvili and other military experts that we need to repeal the “don’t ask, don’t tell” policy. The key test for military service should be patriotism, a sense of duty, and a willingness to serve. Discrimination should be prohibited. The U.S. government has spent millions of dollars replacing troops kicked out of the military because of their sexual orientation. Additionally, more than 300 language experts have been fired under this policy, including more than 50 who are fluent in Arabic. The President will work with military leaders to repeal the current policy and ensure it helps accomplish our national defense goals.

However, after changes apparently made last night, the previous full, earnest paragraph was slashed to one half of a sentence promoting only “changing” the law “in a sensible way”:

[Obama] supports changing Don’t Ask Don’t Tell in a sensible way that strengthens our armed forces and our national security, and also believes that we must ensure adoption rights for all couples and individuals, regardless of their sexual orientation.

However, today Pro Publica (courtesy of the "handy Changetracker tool") noted that 

last night the White House reinserted language saying President Obama supports the “repeal” of Don't Ask Don't Tell. The new phrasing: "He supports repealing Don't Ask Don't Tell in a sensible way that strengthens our armed forces and national security."

One senses that there is some meaning in all these changes, but what is it?

RR

Bush v. Gore Redux in Coleman v. Franken?

The Minnesota recount litigation goes on and on - - - more than four and a half months after the election, the Senate race between Franken and Coleman is still not finalized. 

An insightful piece on Slate by Richard Hasen ponders the relevance of Bush v. Gore.  As Hasen notes, the Court sought to limit Bush v. Gore to the particulars of 2000, the Court has not relied upon it, and appellate courts have not developed it. 

 

Nevertheless, the opinion is cited and is obviously still "in the books," not to mention on the internet. 

Hasen's brief piece is well worth reading, if only for this great closing:

In the end, Coleman doesn't have a strong equal-protection argument. Then again, most of us thought George W. Bush didn't, either.

RR