The sheer number of patents in the U.S. is fueling frivolous litigation and drastic action is needed to make patents more difficult to obtain and easier to invalidate, U.S. Circuit Judge Richard Posner of the Seventh Circuit said Tuesday. > more ... (0 comments)
I’m old enough to remember when the number of statewide elected officials to back same-sex marriage was small enough to fit on one hand–Russ Feingold, Lincoln Chafee, and Ted Kennedy were just about it seven years ago. Nowadays, even red state Democrats are getting in on the action. It’s a pretty remarkable shift in so short a time, though it reflects partly changed political reality. Back then, the assumption was that Democrats needed to make nice with religious conservatives to have a path to a national majority, but the current estimation seems to be that getting more liberal Democrats to turn out in red states is worth the (presumably very small) cost in terms of turning off persuadable voters. This is occurring even among incumbents facing off-year elections, where the voters tilt more conservative–perhaps especially because of those off-year elections, since the reason the electorate is more conservative is because liberals turn out less frequently. This is a pretty easy way of persuading them to get out.
I’ve read a lot of analysis on how marriage is unambiguously helping Democrats politically at this point. It’s true. And it’s going to go on for another decade at least, since so much of the GOP base is simply immovable on this, and a lot of younger voters have the issue as a litmus test. That’s the irony of the Prop 8 case. It would be an extraordinarily easy way to neutralize the advantage Democrats will likely enjoy on this issue for the near future. One could imagine John Roberts, say, deciding to just rip off the band-aid and endorse a Constitutional right to marriage, regardless of gender, as a way of helping out his party in the long run. Admittedly, this would make Roberts even more hated by conservatives, but he’d be doing them a huge favor. Without that issue, Democrats would have a harder time raising money from gay donors. The issue would cease to be a millstone around their necks at the ballot box for younger voters (though it’s hardly the only millstone they’ve got). And we’d have marriage equality everywhere! From a purely political perspective, an expansive ruling would help Republicans and hurt Democrats. The former could have their cake and eat it too, rage against judges while rapidly dropping the issue and moving on, while the latter would lose the issue and campaign contributions. Not going to happen (though I’d gladly take the trade), but it ought to be noted.
Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media.
I actually expected this, but I was too busy to formally predict it yesterday:
The Supreme Court on Tuesday turned aside a request from Ohio to hear a case in which a lower court ruled the state couldn’t stop early voting during the three-day period before the election. The decision is a victory for the Obama campaign, which had successfully argued that Ohio could not allow military and overseas voters to vote during the three day period unless that opportunity was available to all voters.
Secretary of State Jon Husted announced he was appealing the case to the Supreme Court last week, arguing the 6th Circuit Court of Appeals decision didn’t make legal or practical sense.
You could be cynical about it and say that the Court’s right bloc figures Romney will win and wants his victory to be seen as legitimate, but I think one of the few distinctions between the Roberts Court and its predecessor is that the Roberts Court doesn’t seem to be as enthusiastic about naked partisan judging as Rehnquist’s was. The ideology isn’t any different so far as I can tell, but between SCOTUS’s refusal to hear this stuff from Ohio this year and in 2008, and the Affordable Care Act decision, Roberts seems disinclined to go for a Bush v. Gore moment when he has the opportunity. Admittedly, Citizens United might buck the trend, though it’s still in a different universe from the sort of jurisprudence that led to Bush v. Gore.
Apparently he was too focused on zinging Liz Warren that he forgot to pay close enough attention to the content:
In what may have been the key exchange in last night’s debate in the Massachusetts Senate race, Sen. Scott Brown (R) was asked to name his model Supreme Court justice.
“Let me see here, that’s a great question. I think Justice Scalia is a very good judge. Justice Kennedy is obviously very good. And Justice Roberts, Justice Sotomayor, I think they are qualified people who actually do a very good job.”
Putting aside the question of whether or not Brown meant to name Scalia and then backpedaled after realizing what he’d said–it does seem unlikely that when asked who your favorite justice is, you’d wind up naming half the Court–the most damaging part of this is putting Scalia in the list at all. This is a significant misstep, and even if he wanted to dogwhistle in some way, Scalia is probably the worst person to do it with because of his abrasiveness and frequent condescension to anyone who disagrees with him. The smartest move for Brown would have been to say only Chief Justice Roberts, specifically citing the mandate ruling perhaps as evidence of someone who is willing to cross ideological lines. That would have been perfect, thematically. Not sure I’d agree with that assessment of the ACA ruling, but it’s valid. Even choosing Thomas wouldn’t have been as bad–lauding the usually silent justice for his brilliance even when he disagrees might not have gone over well, but it wouldn’t have been as damaging because Thomas hardly ever says anything. Pair that with, I don’t know, some praise for Breyer, and it’s entirely respectable. Lauding Scalia is the worst possible move he could have made, since Scalia is such a controversial figure, to say the least. Trying to say you’re bipartisan and then citing someone known for relishing in antagonism toward progressives is a self-defeating tactic, to say the least, and reinforces my view of Brown, which is that he basically lucked into the seat in 2010, and that aside from working various resentments he has no real political skill.
No doubt about it that the Warren campaign will use these comments thoroughly in the next few weeks, and there are several ways they can be used. There’s a war on women angle there, since as you might have heard, Scalia is not a fan of reproductive choice. There’s a judiciary issue, since presumably Brown would vote for judges like Scalia that Massachusetts residents won’t like. He would be hard-pressed to say he wouldn’t vote for a Scalia-like nominee selected by Mitt Romney, for example. Of course, he might insist he’ll not do so, but this (along with the obviously untrue notion that he might not vote for Mitch McConnell as leader) puts him on the defensive for the time being. The “they’re all qualified people” remark just smacks of insincerity, and the quote itself tries desperately to be vague. Increasingly, Brown’s campaign is sort of like a better-conducted Romney-Ryan microcosm with a more likable candidate, but with many of the same flaws. The obsession with prepackaged zingers, for one. And you have a candidate who insists on continuing various strategies (Warren’s Cherokee heritage) that by almost any accounting haven’t worked, whose desperation is showing down the stretch as entitled assumptions meet hard realities, and whose campaign is increasingly resting on his own strained sincerity. Warren leads by about five points in most polls of the race–with this flub, that margin might well increase a few points after Warren gets the word out to women voters.
Update: Already getting fundraising emails about this. They’re on the ball, to say the least.
So, the Supreme Court upheld the Affordable Care Act and the individual mandate. You can read all sorts of puffery and journoanalysis about the decision but the crux of the thing is actually really, really simple to anyone who’s taken a class in constitutional law.
1. Congress has nearly limitless authority via their broad taxing powers under the Constitution to impose all sorts of various taxes, fees, levies, duties or anything else that has the basic effect of getting money out of people in a similar way. No constitutional scholar of any credibility would dispute this.
2. Even though the Democrats in Congress (and the Obama administration in front of the Supreme Court) completely pussied out (because they are always scared of the word “tax”) and didn’t explicitly justify the law under the taxing power, the Supreme Court unquestionably has the ability to rule on the validity of a law based on any valid constitutional theory they want to (sua sponte). Nobody except partisan dickjobs (e.g., Justices Scalia and Thomas) would think of disputing this either.
3. The majority of the Court that upheld ACA basically said what I just said in points 1 and 2. Not only that, Chief Justice Roberts nearly almost went so far as to explicitly call out the other conservative justices (Scalia, Thomas, etc.) as shameless partisan hacks:
In a section of his opinion joined by the liberal justices, Roberts noted that the conservative dissenters contend that the mandate cannot be upheld as a tax “because Congress did not ‘frame’ it as such. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels.”
So, we can all now be perfectly comfortable calling the conservative assholes in the minority on this decision shameless partisan political hacks because their fearless leader basically did the job for us (well, maybe Kennedy gets off the hook but only because his decisions are rumored to sometimes be based on whether his metamucil was up to par on a particular day).
- Movies! Three items:
- I’ll recommend interested viewers check out Marlene, the unconventional documentary about the legendary Ms. Dietrich. It’s really a fascinating film–she doesn’t appear on camera because of her idiosyncratic refusal to do so, but her acerbic personality more than picks up the slack. It’s a frequently hilarious movie, and Dietrich alternates between bullshit and truth, between prickliness and tenderness, so frequently it’s exhilarating. She’s such a towering figure that the arbitrary constraints of the film somehow do the subject justice. Do investigate.
- Also, I must say, I’m very impressed with the Blu-Rays of the Alien movies. Aliens looks about 100% better than on the DVD release–the fuzziness is completely gone, which James Cameron had said was a limitation of the source material, so I don’t know how they did it. I still maintain it’s Cameron’s best screenplay–this time through I noticed even a few more clever writing choices that I hadn’t before. After that it would be a pretty steady downward spiral, though unlike George Lucas, Cameron hasn’t lost a step as a director and is still a master in that respect.
- Relatedly, I have to give 20th Century Fox some credit on the Alien3 Blu-Ray. The “assembly cut” (now apparently known as the special edition) of the film from the DVD compilation was much better than the theatrical version. Allow me to explain. The theatrical version is barely a movie. There isn’t so much a “story” to it, just a premise with some setup and then a herky-jerky skip to the endgame. The special edition actually featured a basic storytelling device known as a build, along with what is commonly called character development, but it featured a lot of technical issues since it was pieced together from a bunch of incomplete, cutting-room floor material. But the studio, perhaps realizing that the special edition is bound to be the definitive version of the film going forward since it is, in fact, watchable, actually spent some money to rerecord dialog and clean up a few things, vastly improving the whole experience. So, kudos to them. The film as it stands is a flawed masterpiece that I absolutely love, and well worth puzzling over.
- Barack Obama’s controversial plan to attack his opponents’ major weaknesses is working. Color me surprised. I don’t blame Bill Clinton for this stupid “controversy” because the guy has been on both sides of every issue for twenty years now, and my real problem with Booker’s comments was that it was insipid, “Negativity is bad let’s just be positive!” junk that passes for liberalism in some quarters. Obama was wise to ignore them.
- I won’t offer an official Supreme Court/ACA prediction, but my guess is 60% that they strike down the mandate only or keep the bill completely intact, and 40% that they go further. Whatever the outcome, I think it’s well past time liberals reviewed the concept of judicial review of legislation, a power which is granted to the Supreme Court nowhere in the Constitution or the Judiciary Act, and which, civil rights aside, has been almost uniformly used to strike down progressive legislation (and was also the vehicle for some good late-1800s bigotry too: the only post-Reconstruction civil rights bill was struck down, Plessy v. Ferguson, etc.). The memory of the Warren Court looms large, but that’s not typically how it’s been. At the very least, some additional checks on the power of the judiciary would be nice, like mandatory retirement at 70, a twelve-year term, maybe others. I thought it was ridiculous that Nixon would be able to have an impact on the Court 30 years after he left office, in Rehnquist.
I must say that I’m enjoying the ongoing Romney immigration trainwreck. It’s becoming increasingly clear that either Romney had no plan at all for how to deal with the issue, or he felt he had no real room to maneuver without losing significant support. So while Obama has been making bold, smart, popular moves on the subject, Romney’s been issuing vague suggestions that nobody is paying attention to or cares about, alternating bad faith attacks on Obama with wimpy cant that really just makes him look utterly pathetic.
People don’t respond to this. They respond to strong moves and positions. Honestly, Romney would probably have been better off from a strategic standpoint just outright condemning Obama’s DREAM and continuing to be borderline nativist. I don’t really think the Hispanic vote was going to be up for grabs this year, and certainly not for someone with Romney’s recent history. That he spent so much time working on trying to reboot himself on this issue despite having serious handicaps to overcome and no real room to maneuver shows that he’s basically an imbecile who can’t understand that he can’t have everything that he wants, or won’t listen. And this morning’s capper was even more ridiculous:
Despite his nod to states’ rights, Romney did not say whether he agreed with any or all of the Supreme Court’s decision, a complicated ruling that labeled several provisions of the law unconstitutional, but left the most controversial segment for later, saying future courts would need time to determine its effects. Nor has Romney taken a position on whether he supports SB 1070 in the first place, despite embracing the architect of the law, Kris Kobach, as an immigration adviser during the presidential primaries. An e-mail to the Romney campaign asking for further clarification on the Supreme Court ruling was not immediately returned and an official told the traveling press not to expect any more comments. [...]
Romney’s does-he-or-doesn’t-he SB 1070 statement comes on the heels of his prolonged dodge of President Obama’s recent executive order blocking deportation of some young illegal immigrants, refusing to say expressly whether he would overturn the action. A young undocumented college student confronted Romney Thursday after his speech to Latino group NALEO in Florida, and said she didn’t have any better luck getting Romney to articulate a position as to what would happen to her under his administration. Though Romney vowed to “replace and supersede” Obama’s order with a long-term solution, he has offered only scraps of information on what that solution might entail, saying only that he favors some path to legal status for members of the military.
In other words, what’s my position, you ask? OBAMA SUCKS, that’s my position!
It seems pretty obvious that Romney only knows how to use the issue as a way of appealing to the xenophobes, since it was used against him in this way to deny him the nomination in 2008 (remember his hiring illegal immigrants?), and he used it to administer the coup de grace to Rick Perry’s hapless campaign. But he could have done this many different ways. A “no comment” would have been possible. Something along the lines of, “we’ll have to look at the details of the ruling and their implications more and get back to you” would have almost been respectable. But ultimately, Romney has no feel for the electorate to such an extent that he makes the occasionally tenuous grasp on it displayed by Obama look positively Rooseveltian by comparison, and the effect of constant, unchanging Obama attacks will have some form of wearying effect on the electorate. We have seen this precisely in the two prior elections he’s lost.
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