Tuesday, January 31, 2006

Whoa Nelly

So there I was this morning. Minding my own business. Websurfing trying to avoid work. Checking out one of my multiple-per-day stops, the great ultra-progressive community blogs, My Left Wing, where I've been graced with front page rights, even though I've never been sure exactly why, and there it was.

The 2005 Koufax Best Post Nominations List.

A list 220 strong. Which has my name on it four times, for four separate blog posts that originated here but were cross-posted (and thus actually seen LOL) on MLW.

As I said on MLW today, Holy Shite.

Of course, if there was any correlation between blog traffic and writing recogniztion I'd be as obscure as I was this summer when I finally took the plunge, quietly yet fully accidentally stepped on someone else's active blog name, Ma'at's Feather. As of today, I'm just now just over 5,600 views of this tiny little baby blog, a number that to me would have been unfathomable considering I've never even told most of my real-life crew about this place, scarified about what they'd think or say ("Girl, are you CRAZY?????) in a world where publishing your words merely gives someone professional ammunition against you as an uppity Black woman forever.

But to see that somebody, somewhere, thought that not only was my work memorable, but that even a single writing was good enough to be in play for a Koufax nomination, I'd have never expected. But to see that someone thought that four different things I'd written were? Unimaginable beyond unimaginable.

I'm utterly humbled. I don't know whether to retire from blogging and go back to full-time lawyering now before I embarass myself, or if I'm supposed to keep blathering so someday someone is not cussing having wasted a nomination on an ex-blogger..........

There are some pretty extraordinary writers on the 2005 Koufax nomination list (and I don't include myself in that group even as the posts nominated were all pretty OK). They are writings from high-profile heavy hitters and the musings of those who are not high-profile, yet still blessed with intellect, rhetoric and spirit. I hope that folks take advantage of the link to the nominations above. At a minimum, folks should definitely read all the posts nominated from the following blogs, all of which are must-read favorites of mine, even if my blogroll is rather lagging at the moment because my 15 year old has not yet told me how much adding some more HTML is going to be (and she knows I am hosed without her):

My Left Wing,
Pam's House Blend,
Street Prophets
Shakespeare's Sister
Lawyers, Guns and Money and
Obsidian Wings.

You cannot go wrong checking out these blogs, or the nominated posts for these and all the other sites. I'm awed to be in the company of such writers as a Koufax co-nominee for Best Post of 2005.

Finally, while I know that there is absolutely no chance in hell that I would actually win, and almost no chance that I'll even advance beyond this initial round, I nonetheless owe a real thanks to whoever it was that actually nominated me. So here it is.

Thank you! Will you please be my editor? My typos are killing me and my eyes are going bad.

Oh, BTW, the four posts of mine that have been nominated for a Koufax are:

A Blast from the Racist Past
Making of a Martyr: Ms. Bunnatine Greenhouse
Reproductive Justice, Not Just Abortion, is What Really Matters
The Line in the Sand: Freedom vs. New America

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I Don't Want Women to be *This* Equal!!!

It was only 15 years ago when the media first heard the name Aileen Wuornos, reportedly the first woman known to fit the FBI profile of a random serial killer (i.e. a woman without no personal relationship to her victims before the murder, even though she clearly was not the first woman to actually *be* a serial killer). It was only a few years ago that we heard our first whisperings of female suicide bombers. And only six months ago when we first heard that women were in charge of a sex operation enslaving young girls, an otherwise depressingly common occurrence in the underworld right here in the United States.

Today's news brings us this: the first report of a female disgruntled postal worker. A woman who yesterday returned to her former place of employment in Goleta and killed six of her former colleagues before killing herself.

Goddamnit. I don't want to be this equal to men.

Has the fight for women's equality now become the right to equally oppress and kill, gender details a mere blip in the otherwise normal normalcy of random violence?

Of course, there are those who would call themselves feminist who would not be especially troubled by such reports and might indeed contend that in an equal world, these things are to be expected. After all, there is no reason to believe, at least superficially, that there should be any difference, all the so-called science that deemed women "less violent by nature" having been thoroughly debunked at this point. But I guess I am a dinosaur. The voices of women have, to me, in my lifetime, have most often been the voices of peace. The voices of communication, compromise, and caring. Stereotypes that have a real downside if overapplied, but nonetheless some of the few stereotypes that are actually positive. When Carol Gilligan argued that women's moral development was trained in a different, more positive way in her seminal work A Different Voice, I believed her. My experience of the world, even with full knowlegde of women's strength throughout history, bore out Gilligan's theories in a way that was never refuted. Not even by folks who put a lot of energy into trying to do just that, like the late Larry Kohlberg her former colleague and ethical theory nemesis. And definitely not the self-labeled feminist Christina Hoff Summers -- who despite having once held a view of feminism that was aligned with first wave feminism, jettisoned all shred of scholarly credibility the minute she accepted blood money from rabid conservative think tanks and used it to write a deeply flawed, unscholarly, broad-brush polemic attacking feminism as merely a "war on boys".

The tension between women seeking "equality" and women seeking "equity" has been a real tension, in feminist discourse, in relationships, in the law, and in social science. It is difficult to know where to sit, as a womanist. I see no evidence that women of color have ever wanted much more than to be acknowledged for being the Rock they already were - strong, powerful, capable, yet grounded in their families, loving, and forgiving - with an acknowledgment that they were still, despite being Rocks, still Real Women. These are inherently different goals than those originally and currently pressed by mainstream feminism, which started by necessity from a place where women were put on a lifelong pedastal of isolation and oppression that women of color were neither invited to stand on nor given the luxury to choose because we had to be, far too many times, the end all and be all of our communities' survival. And currently finds itself fighting against the return of those same women to the pedastal prisons they just escaped from.

In other words, the womanist fight arguably has been the fight to show that we are really women, not men in disguise. The feminist fight during times of its history and present has often been the opposite - to show that they are men's equals. That divergence in approach may well explain why when I read stories like today's about the Goleta postal worker, I cringe *because* it was a woman in addition to cringing because it is death. If I have expectations that are different for women, does that make me sexist? Mainstream feminists would likely say yes, if sexism is defined as holding one gender to a different standard than another, such that a woman's resort to violence holds more cultural meaning than a man's. Perhaps that is true. But under a womanist view, it seems to me that we wish to disguish the strength of our gender to rise above such things as random murder, the one place where it is hard for most people to argue that someone had "good reasons" for killing someone. If that has not been our history as women, I don't want it to be our present or future, either.

And if it means saying that I don't want to be equal to men in this type of thing, because as a woman I'm better than that, so be it. I guess.

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Another Mother, Gone

While we were all focused on the Senate and its Work of the Devil yesterday, an icon of our culture was quietly taken home.

Mother Coretta Scott King passed yesterday.

It is not an unexpected thing, her time. After all, the stroke she had this summer was massive and, at the age of 78, it is hard to bounce back from that type of thing. But it seems that as much as Mother Parks' passing, Mother King's passing marks the end of an American era, not just the end of a life.

When you read about Coretta Scott King, it seems clear that much of her own personal commitment to justice was blotted out by the all-encompassing shadow of her late husband, Dr. King, and his elevation post-death to cultural icon. She was just The Wife, it seems, in most writings about the time and her husband. But such a narrow vision of Coretta Scott King does her a real disservice, all squabbling and controversy about her stewardship of the King Center and her quest to clear the name of James Earl Ray aside. Another woman would have been broken, two months after being widowed so violently and left with four babies to rear. But Mrs. King was not. Instead, just two months after his death, Coretta Scott King was at the head of the 1968 Poor People's March, technically in the name of her husband, but given the subjects she covered (which included a call for women to take a bigger role in the movement) it was clear that she was speaking in her own right, as her own leader.

Her quiet leadership continued throughout the remainder of her life, usually reported as an afterthought. But I remember her fighting against apartheid, leading sit-ins against the brutality of South Africa, long after Dr. King was gone. I remember her being the fire behind the juggernaut that was Stevie Wonder's campaign for the King Holiday, particularly as it exploded to deal that recalcitrant bastion of racism, Arizona. In her last few years, Mrs. King had become a fierce advocate for the equality of LGBT people, earning the emnity of her own, deluded, daughter, Bernice in the process. Expanding the vision.

But most don't remember these things. Particularly that Coretta Scott King was also a womanist (a label that did not exist when she, like so many Black women, developed feminist sensibilities and advocated that we had played and must play a powerful role in bringing freedom). A fierce proponent of women's education and equality, the person who revered the wisdom of Bayard Rustin, a gay Black man whose sexuality in light of his communism/socialism always gave Dr. King and the official "movement" much pause. A different mind to her husband's, about some things. Perhaps because she knew the sexism of her late husband (a gifted man, but also a womanizer) well, when she began to speak publicly in her own voice one of the first things she did was embrace Black women's power to be the vehicle of change:

Women, if the soul of the nation is to be saved, I believe that you must become its soul.

Most folks don't think about these things, when they think about Coretta Scott King. What they remember was a beautiful woman, whether as a young wife standing by her husband, a widow so regal that she took your breath away holding her young daughter next to her at the pew, a women who carried in herself a dignity that most just assumed came from her husband and his legacy.

They assumed wrong.

Thus, Mother King joined a long proud tradition of fearless Black women activists, different stylings of the same power. She joins the likes of Myrlie Evers and Betty Shabazz, who each themselves joined the legacy of the Septima Clarks, Fannie Lou Hamers, Ella Bakers, Diane Bevel Nashs and Angela Davises, who themselves joined the Mary McLeod Bethunes, Ida Wells Barnetts Sojourner Truths and Harriet Tubmans. She joins a tradition of fierce Black heroines who earned their place in history in their own right. Even as they were also the wives or paramours of Black male freedom fighters with different approaches to the mission, and the mothers of the next generations. Mrs. King fought, sometimes loudly, usually quietly, in her own right, even as most folks thought that all a Black woman could be was wife, mother, worker or harridan standing by her man.

Rest in Peace, Mother King. Your passing is the end of an era.

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Monday, January 30, 2006


That was the announced vote. Only reason it wasn't announced 1/2 hour ago is because Lindsay Graham's ego required that his late-ass vote be counted.

72-25-3. Three who were not there, one of who we know could not be there because he was in a head on automobile collision this morning. But if he had been, it would have been 73-25-2.

Last time I checked, there were 44 Democratic members of the United States Senate. We also know that Sen. Jeffords voted against cloture.

That means that the vote in our party was 17-25-2. In other words, even though the Devil Got his due when the 4th Democratic senator had cast his or her vote for cloture, 13 others nonetheless felt compelled to say "me too."

Even though it was the last death knell for any possible appearance of party unity and discipline that the Democratic Party.

And as we sit here now, because there was so overwhelming a number of our own breaking ranks when it was absolutely NOT necessary to do so once the 5th vote for cloture had been cast by a Democrat, I'm sitting here listening to Sen. DeMint gloating about the bipartisan cloture vote, a quiet portend that I know is going to be 1,000 times more gloating tomorrow night when it comes out of Dubbya's mouth:

"Democrats will say anything, and do nothing."

Those are the words I just heard Sen. DeMint utter.

He is right. Goddamned his Republican soul. He is right.

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Friday, January 27, 2006

Democratic Senators: Lead, Follow or Get Out of the Way on Alito

As that great rhetoritician Thomas Paine is reported to have cautioned those who had misgivings about the revolutionary principles that had created America:

A thing moderately good is not so good as it ought to be. Moderation in temper is always a virtue; but moderation in principle is always a vice.

Those Democratic Senators still on the fence or opposed to Judge Alito's cloture vote today would do well to heed our Founding Father's caution about the ills of moderating one's stated principles at 4:00 PM today, when the cloture vote on the nomination of Judge Samuel Alito to the US Supreme Court begins.

Make no mistake: today's cloture vote is a vote about principles, not Senatorial temperament. It is a vote that will tell both sides whether Democrats are mere politicians -- spineless, pandering, and unprincipled, as our enemies have charged for the last five years -- or whether they are principled representatives of the masses who sent them to Washington to speak for us. Democrats who really are Democrats, who stand for liberal principles and a government that provides equality and freedom for ALL -- not just for the wealthy, white and male -- simply cannot justify failure to oppose cloture for temperamental reasons, such as deference to the President's choice or the politeness of "moving on" merely because the nomination appears to be supported by the Senate majority. This is because the fight against Judge Alito is a critical fight in the larger war to ensure that the Supreme Court remains the key protector of the fundamental rights and liberties that the last 60 years of Court jurisprudence has created, for those previously left out of any meaningful vision of America.

In other words, contrary to the platitudes spoken by Democratic strategists and pundits, both in the media and in the blogosphere, who are always quick to soothe those who wish to fight with the hollow solace that "a Democrat is always better than a Republican", it is not enough now for Democrats to continue to insist they are for all the "right things" while in the name of "cooperation" and "politeness" they continue to lay down before the immoral juggernaut of the current Republican majority in the Senate. They must instead draw a line in the sand of their principles. They must throw down the gauntlet and fight to the death for the protection of those "right things" -- Democratic Party principles. Those principles have fallen, time and time again over the last 22 years since Satan sent Ronald Reagan to lead the nation, increasingly the victim of political compromise, political temperance, and political expediency. Merely because Democratic strategists and pundits have been trying to be "fair", "compromising", and "polite" in the name of winning majority votes in the court of popular opinion that only an idiot still believes will ever come.

Why Judge Alito is wrong for the Court at this time, and why it is NOT the duty of the Senate to appoint him despite what President Bush wants has been carefully and thoroughly written about and analyzed in every medium possible. That those arguments did not persuade the majority of gatekeepers, our Senators, to reject him merely confirms that today in the Republican-controlled federal legislature, party is the only true loyalty, not principles. Yet as Paine wrote in his Dissertation on The First Principles of Government, it was never intended that our Constitution be used to enshrine government by political party. Instead

It is the nature and intention of a constitution to prevent governing by party, by establishing a common principle that shall limit and control the power and impulse of party, and that says to all parties, thus far shalt thou go and no further.

That this was intended to be true within the context of Senate confirmations of Presidential nominations that have been made for the right-wing pandering reasons that are evident with Judge Alito's nomination is indisputable. As Alexander Hamilton made clear in Federalist 76:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.

In light of what our founding fathers have told us, it is not enough for Democratic Senators like Robert Byrd to have secured their place in history emphasizing the Senate's duty to the beloved Constitution to fight Executive Branch excess, and fighting against the Bush Administration's threats to Separation of Powers, while arguing that it is somehow ill-tempered or impolite to fight against Judge Alito because it is guaranteed that he will deliver yet another vote in favor of the most violative of checks and balances doctrines, substantive Unitary Executive Theory, to the High Court. The same Senator who, based on what I presume were heartfelt even if immoral and racist principles, waged the longest filibuster of the 1964 Civil Rights Act cannot now argue with a straight face that principles do not matter far more than any message of "impoliteness" or "lack of faith" that filibuster of Judge Alito may send.

It is not enough for Democratic Senators like Barbara Mikulski and Blanche Lincoln or even Republican Senators like Olympia Snowe and Susan Collins to steadfastly claim to be pro-choice women, yet refuse to draw their line in the sand on Judge Alito, when they know that the only truly guaranteed protection for an abortion right of ANY kind in America (no matter what disagreements we pro-choicers have about the scope of the right, we have NONE when its fundamental existence) flows in most states directly and ONLY from United States Supreme Court jurisprudence. And when they know with virtual certainty that both the Supreme Court and many individual states will shift hard against abortion of ANY kind being a right if Judge Alito is elevated to the highest court in the land and either undermines or outright overturns the Court's privacy jurisprudence, including Griswold, Casey and/or Roe.

It is not enough for Senators like Daniel Akaka, Barack Obama and Ken Salazar to fight (even if rarely in direct racial terms) for or against policies that disproportionately affect their own people (i.e. those who share their minority race and/or ethnicity) who normally suffer the worst effects in the laissez-faire America that has been in gestation since Reagan Revolution and has now been born in the policies Emperor George Bush. They must also now stand and fight against the elevation of Judge Alito to the Supreme Court when his well-known legacy in the Third Circuit makes plain time and time and time again that the Courthouse doors -- would be virtually welded shut against us - whether US born or immigrant, Black, Latino, or Native. When they know that the highly shaky shelter we have found over the past 60 years for our rights to do everything from work to marry as equals was built primarily on the foundation of Supreme Court jurisprudence. When they know that, our people will likely be the first and hardest to fall under the cruel scythe of the facially benign legal tyranny of a still largely racist, ethnocentric and classist (yet largely self-unaware) American majority if Judge Alito is elevated and shifts the Court's view of what the Constitution guarantees to those who simply cannot buy their government's loyalty.

It is definitely not enough to have a sincere desire to just "move on" even in the name of helping the truly desperate in their hour of greatest need, as Senator Mary Landrieu should know. Particularly when those most in need include the poor, people of color and women. The very same constituencies -- which together make up the plain majority in Louisiana -- who will lose far more long-term than they will gain short-term if Judge Alito's elevation is permitted to shift the Court away from the populist principles historically advocated -- through filibuster, no less -- by one of the state's most controversial yet loved figures, the assassinated Senator and legendary populist Huey P. Long. The Senator has a duty to ask herself plain today: what would Huey P. Long have done? I believe in Mary Landrieu's case, both Senator Long's history and her own before she moved into the DLC middle speak for themselves.

There is only one thing that matters today, for each of these and others wearing the label "Democrat" on the Senate floor today: standing firm for Democratic principles, the same principles our party champions to the grassroots each and every time it seeks our support at the polls. In the context of Judge Alito and what his appointment will do to the Court, there is only one vote that is consistent with these stated principles, which the primary reason that the Democratic Party has not otherwise become an utter irrelevancy to most on the left: a vote against cloture on the floor of the Senate this afternoon.

That neither the Democratic-voting public nor our Senators will relinquish the fight against Judge Alito's confirmation based on our principles would be fully justified by America's revolutionary tradition, even if we lose. Perhaps, especially if we lose. For, as Thomas Paine also wrote, in The Crisis No. I:

These are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as freedom should not be highly rated.

Those words are apt now. Because we are at war, and perhaps making our meaningful Last Stand. A Last Stand being led by Senator John Kerry (a man who under other circumstances could never lead this particular Sapphire given his utter repudiation of his promise to Black voters last November, but who nonetheless gets sincere thanks from me for stepping up -- for whatever reasons, selfish or not -- when it seemed that no one else would) and Senator Ted Kennedy (who like his revered late brothers, John and Robert will be remembered as a true hero of the left in the fight for the Court, no matter what outcome, because of his eloquent opposition to Judge Alito for all the right reasons). A Last Stand that many, myself included, see as the last attempt to save the Last Bastion of Hope for many -- the United States Supreme Court -- from being lost in the larger right-wing war to take over this country. Saved from becoming the third branch of the Republican Reich (the first two arms, the Executive and Legislative, already well-seized by those who abhor most of the progress of the last 60-70 years in America whether for small-minded or outright greedy reasons). Saved for at least the next 25-30 years from an otherwise guaranteed backwards retreat from America's judicial attempts to ensure a free and equal America, when that equality is measured by gender, race, ethnicity, disability, economic status or age.

If the finger in today's political wind is to be believed, the outcome of today's scheduled cloture vote is right now too close to all. That itself is a victory, when but five days ago we seemed poised to merely repeat the utter rollover that Democrats gave Justice John Roberts just three months ago. We are so close, and we know what is at stake. So, despite five days of battle blitz via fax, e-mail and telephone -- we simply must keep going. Never stop. As long as we don't stop, neither can our elected Senators. Or if they do, at least it will be clear that it is to their peril, if it isn't clear that the nation's peril itself is all that requires action right now.

Finally, to Democratic Senators and Republican friends who STILL just don't get it, I'll end by telling you plain the same thing that, purportedly, Thomas Paine also once said. This is your Constitutional and moral duty on the Senate floor today:

Lead. Follow. Or get out of the way.

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The Whitening of New Orleans Using the Bleach of the Almighty Dollar

I guess, technically, today's news from the New York Times predicting New Orleans' racial future is not a shock, if for no other reason than Black people collectively aren't stupid. But nonetheless, today's news is different -- because It's Almost Official:

The City of New Orleans is on its way to, henceforth, becoming a majority white city. It is being whitened it in a way that long-standing real estate speculation efforts, government sponsored redevelopment and long-standing always just-under-the-surface anti-Black racism never could. According to today's New York Times:

Of the 354,000 people who lived in New Orleans neighborhoods where the subsequent damage was moderate to severe, 75 percent were black, 29 percent lived below the poverty line, more than 10 percent were unemployed, and more than half were built"

This type of data has led Brown University's researchers to conclude that up to 80% of New Orleans' Black population might not return.

Of course, it's all about money: from Mayor Nagin's cruel four-month "use it or lose it" ultimatum to the most damaged low income neighborhoods -- a cruelty so obvious because it both established an unrealistic deadline and denied building permits -- that IMO it is a major reason that Nagin felt scared enough about his plummeting standing with the Black folks who put him in office that he needed to reassure folks that New Orleans would again be a Chocolate City on MLK Day.

That making money off Katrina misery, whether through formal "rebuild programs" that give no realistic chance, to even more facially "fair programs" like the rebuild plan proposed by Representative Baker and rejected by the Bush has now become the name of the game then there are the financial horror stories that are not yet being told by the mainstream press.

Such as the increasing stories of the "adding insult to injury" cruelty of subprime mortgage lenders. (I affectionately refer to them in my law practice as "bottom feeders".) Subprime mortgage lenders are, historically and presently, a major scourge on African-American homeowner communities nationwide. New Orleans pre-Katrina, was no exception. It was estimated that more than 26% of all mortgages held in African-American parts of New Orleans were held by subprime lenders.

Anyone who knows that business knows that this was a recipe for disaster that could only be accelerated by Katrina. Even though most of the bottom-feeder lenders, like Wells Fargo Financial, CitiFinancial, and Chase Home Mortgage (all of who ultimately cleaned up their initially discriminatory Katrina acts, but only after low-income consumer advocacy groups like ACORN and ICP stepped up) are shills: subprime lending arms of major banks.

It is not widely known that most of the subprime lenders initially originally offered far less help to Katrina victims holding subprime mortgages than they did to their "regular" banking customers. For example, until it was called out, Wells Fargo Financial originally provided Katrina forbearance relief only if a WFF customer *asked* for help. Others, like CitiFinancial (subsidiary of CitiBank) and Chase Home Loan (subprime arm of Chase Manhattan Bank) offered only 30 or 60 days forbearance plans -- again upon request, as opposed to the automatic forbearance these same banks gave to their mainstream customers -- instead of the default, 90 days offered to prime borrowers (and now offered by all, thanks to consumer advocacy groups). But now, the lenders are trying to eat the icing on the cake of their subprime mortgage targeting, in connection with Katrina.

So there are stories. Stories of subprime lenders nailing Katrina homeowner victims who wanted to fully pay off their mortgages using their insurance settlements with a demand for their contractual prepayment penalties -- punishment money that only subprime, already high-interest paying borrowers are ever forced to suck up in the first place as a condition of getting a loan. (I cannot overemphaize that punishing a homeowner for *paying a high interest loan early* is a nothing more than a guaranteed windfall for subprime lenders: they either get tens of thousands of dollars in free equity skimming, or they trap poor homeowners who don't wish their equity skimmed into bad financial terms). In this context, they are instant, sheer 100% legal profit off a Katrina victim's misery. Stories of subprime lenders offering forebearance agreements that looked nice in theory under the immediate stress of Katrina, but in the light of day now appear to guarantee the ruination of a Katrina victim's credit rating and loss of the very home they were trying to save if they cannot immediately make a 4-month balloon payment. Stories that, but for zealous advocacy by groups like ACORN and ICP, would have led to brand new tragedies for homeowners who have already boundlessly suffered at Mother Nature's hand (as aided by federal government incompetence).]

Stories that the mainstream media has not yet reported.

When you learn of these quiet stories in light of last month's welfare offer to homeowners to have them sell their homes -- what I call the "3/5th of a House for 3/5 of a Man Plan -- it just begs the question asked by Professor Logan, Brown University lead researcher:

The continuing question about the hurricane is this: Whose city will be rebuilt?"

A perfectly legitimate question, the answer to which has the capacity of bringing great comfort or great anger to large numbers of people. Perhaps trying to stave off the latter, the Times runs to the technically "centrist" but unquestionably capitalist Establishment think tank, the Brookings Institution, to reassure the masses that the 80% figure is "just" a "worst case scenario" even it concedes that it is a viable scenario in the next six months if something is not done.

I guess we're supposed to be comforted that the racial handwriting on the New Orleans wall isn't going to be in indeliable ink for another six months.

So I don't see any basis for comfort, especially now that the Bush Administration's has rejected out of hand the admittedly expensive, yet locally-supported even though possibly flawed "3/5 of a House for 3/5 of a Man Plan" advanced by Rep. Baker for rebuilding New Orleans. While potentially deeply flawed, as I blogged previously, the Plan at least tried to partially preserve homeowner equity, the foundation necessary to rebuild the future for Katrina victims.

But the Baker Plan has been jettisoned out of hand by the Bush Administration, on the grounds of the Almighty Dollar.

In his press conference yesterday, Dubbya completely evaded the legitimate question about the impact that the Administration's summary rejection of the Baker Plan might have on restoring New Orleans' poor population. Well, except for where Bush admitted that stuff said earlier about rebuilding New Orleans was needed to be "said early on" to "reassure" people. And except for taking credit for the "$85 billion" authorized by Congress for "Gulf Coast Relief" (even if only $29 billion has actually been appropriated in the budget and only $6.2 billion in CDBG block grants has actually been allocated so far for New Orleans) and emphasizing that the maximum -- assuming it is ever actually spent -- is "a lot of money".

Given the data analyzed in the Brown University study, the fact that the mass foreclosure train appears to have left the station, and the fact that currently only $6.2 billion has been provided to begin to offset what are estimated to be nearly $125 billion in losses, I'm afraid that we can increasingly be certain of the answer to Professor Logan's question:

Not Ours.

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Wednesday, January 25, 2006

Filibuster is Both the Right and Duty of Our Democratic Senators

One of the most frustrating aspects of this Samuel Alito juggernaut bearing down on us is the failure of most Democrats to challenge the idea that Senators are behaving "outside the norm" or "beyond the pale" by raising vociferous objections to Alito despite the fact that he is facially "qualified" to hold the office of Associate Supreme Court justice: the failure to directly challenge, using history, the idea being sold to the American public by the Administration, the Republicans and the media that any objection to Judge Alito's elevation that is not based on irrefutable evidence of a formal disqualification based on (a) legal reasoning skill, (b) ethics or (c) judicial temperament is unfair to both the nominee and the President.

As a disclaimer, I am not a constitutional scholar, even if I have been told that I am otherwise a decent enough lawyer. But this idea that the Senate has the burden to prove why a nominee should not be appointed appears to be utter nonsense even to the Constitutionally ignorant like myself.

Article II, Section 2 of the United States Constitution reads, in pertinent part, as follows:

The President shall . . nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

Reading Article II Section 2 in light of the seminal case of Marbury v. Madison, which describes the delivery of a signed commission of office by the President as a ministerial act, and U.S. v. Smith, a case from 1931 which establishes the limits on the Senate's ability to recall and reconsider a previously granted advice and consent, it seems fair to say that the Framers contemplated three independent steps before the most powerful executive and judicial officers in the land, other than the President and Vice President, would actually be permitted to assume office:

a) The President nominates the person that he wants to serve, based on his desired criteria;

b) The Senate evaluates whether it also wants the person nominated based on its independent desired criteria and either agrees or disagrees with the President's selection. If it agrees, it then provides its advice and consent authorizing the appointment.

c) If the Senate has advised and consented, the President is authorized to appoint his/her nominee (with no duty to do so if he changes his/her mind before signing the commission, but with the ministerial duty to deliver the commission to the appointee once it has actually been signed.)

Why is this cumbersome system even in existence? Well, if we believe Alexander Hamilton, it is designed to prevent the President from imposing nominees on the nation based solely on his personal or political predilictions:

Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

In other words, a fair reading of the Constitutional language and the intent of the framers as expressed by Hamilton is that there is not only a right, but a duty for the Senate to serve as a check and balance on the President's choices for office unless the Senate chooses to relinquish that role within the context of for inferior offices. There is no evidence in the language of the Constitution or in the framers' writings suggesting that the Senate is supposed to be a passive body or mere ratifier whose Constitutional duty is to give the President the Supreme Court (or any other) nominee he wants unless it can come up with an extraordinary reason not to. Instead, a fair reading of the language of Article II Section 2 in light of both Hamilton's discussion of the purpose of the advice and consent clause and the few cases addressing it suggests exactly the opposite conclusion:

Unless the Senate *independently* agrees with the President about a Supreme Court nominee, the President gets bupkis, other than the right to keep trying by nominating someone else.

Further evidence for this understanding of the Senate's duty in Article II Section 2 is readily found in the Senate's power of reconsideration, a power that has never been challenged by the Executive except within cases where the third step had already occurred and the President had already signed the commission of appointment. Any Senator voting in the majority on any appointment may bring a motion for reconsideration within two executive session days to reconsider any act, in accordance with Senate Rule XXXI. In the case of a nominee to office, the absolute right to reconsider during that time exists so long as that reconsideration occurs before the actual commission making the appointment is signed by the President. It is only once that act occurs, according to U.S. v. Smith, that the Senate act of "advice and consent" is deemed complete and irreversible.

What is also notable about Rule XXXI is that there is absolutely, positively, no mandate for an up-or-down vote in it. Instead, Section 6 of the Rule clearly provides that

6. Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President.

Why would Senate Rule XXXI contemplate that there will never be a vote on a nominee at all and prescribe the outcome of such a situation?

Because of the time-honored, accepted by anyone other than the current fascists occupying the majority of seats in the Legislature and the Executive Branches, practice of filibuster.

Filibuster is, under any reasonable review of history, an extraordinary remedy. A remedy which allows a substantial minority in a legislative body (now, only the Senate, although it was previously a right of the House as well) to prevent an act by the majority. Has it always been used for just causes? Of course not - it has been used as much to advance hateful and racist American ideals as it has been to assert populist stances. But the filibuster has a 150 year history, and our nation has not toppled as a result.

Filibuster is clearly not intended to be day-to-day practice in the Senate, and 150-year history reflects that. However, just because the last time a Supreme Court nominee was filibustered was in 1968, following Johnson's ill-timed attempt to elevate Justice Abe Fortas to the role of Chief Justice does not mean that filibuster is improper. Arguably, the sparse use of the practice suggests that it is Working as Intended: it is to be used in truly extraordinary circumstances, where a facial majority of the Senate might otherwise force an appointment that is viewed by a substantial minority as not just unfavorable to their constituencies' legitimate interests, but instead highly adverse.

This is the situation in which we find ourselves with Judge Samuel Alito.

That Judge Alito is a judge whose view of the Constitution and the rights possessed by Americans is highly conservative is not in dispute and, indeed, Judge Alito would likely be proud of the label given his stated reasons for developing an interest in the law (opposition to the Warren Court's jurisprudence) in the first place. Even Republicans do not try to argue that Judge Alito's elevation will not change the direction of the Court towards the highly conservative. (To the contrary, some are even as I write fully admitting that this is likely to be the case in today's floor debate, finally admitting that it would be completely appropriate if Judge Alito after his appointment plays a role in a larger culture war.)

So then why do Democrats find themselves on the defensive, when it comes to raising hell about Judge Samuel Alito? Why are we on the ropes? After all, if I believe the historians 25% of all Supreme Court nominees have ultimately NOT been confirmed, whether because their nomination was withdrawn or because they failed to obtain the Senate's consent. That's 1 in 4, belying the current Republican spin that somehow, not voting to confirm Judge Alito even if he is qualified is "extraordinary or "unheard of". It's neither, even if it doesn't happen most of the time.

(In contrast, cabinet appointees have been rejected only 2% of the time, a truly rare outcome that makes perfect sense if you think about it: the cabinet is truly intended to be the President's closest advisors, such that without personal rapport and deep trust, they cannot truly fulfill their offices. As opposed to Supreme Court justices, whose Constitutional role is not to serve the President, but to serve as a balancing check on that same and later Presidents and the Legislature).

What is extraordinary, however, is having a Supreme Court nominee whose own work before his ascention to the bench, and lengthy judicial record make clear that he may well become the deciding vote in effectuating a sea change in some of the most fundamental pillars of our current society. The most obvious, of course, is Alito's embrace of substantive Unitary Executive Theory, a theory which has been (badly) pressed several times now by Justices Scalia and Thomas on the bench all by their lonesome. A theory which carried too far at the substantive level can be defiant of clear Constitutional principles that even Justice Scalia -- one of the theory's staunchest proponents, as evidenced by his vociferous dissent in the independent counsel case, Morrison v. Olson -- raised a rhetorical objection to it, as the Administration tried to apply it in the Hamdi case.

As this rich historical description of nomination process on the Senate's website makes clear, Democrats are not only within their rights, but practically duty bound to take extraordinary measures to stop the appointment of Judge Alito the Court. This nomination is not one in which the evidence suggests that the passage of time will temper the nominee. After 15 years on the bench, and in light of his deliberately opaque testimony before the Judiciary Committee, there is simply no evidence that Judge Alito is going to change anything about who he is or how he sees the world.

So what else does it take for Democrats to stand up and fight this to the (rhetorical) death? An engraved invitation? Hell, if even the New York Times -- an arguable co-conspirator in the Bush Administration's constitutional overreaching this past five years as evinced by both Judy Miller's unapologetic shilling for the illegal invasion of Iraq and the Times' decision to withhold the truth about warrantless spying on Americans until after the November, 2004 -- now says "Stand up and filibuster this frightening man!", then we know how serious this moment in history really is.

I couldn't agree more with the Times, this morning:

A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.

Our Democratic Senators are, at this moment, desperately in need of a spine. Let's hope the hundreds of thousands of calls, faxes, e-mails and public statements of objection grow them one, fast. If they don't, and Alito is confirmed, we might as well pack up and throw in the towel on the still-unrealized American ideal, a country governed by checks and balances, in which each of the three branches of government separately assure the inability of extremism to limit our ideals of freedom and opportunity and the Supreme Court is the last bastion of our rights against the tyranny of the majoirity. With the shifting of the Court in such a dramatic fashion, the last curtain on what most of us revere as the theoretical, even if not actualized, ideal of America (where at least in theory the powerless matter as much to our identity as the empowered; the poor matter as much as the rich; women as much as men; non-white as much as white) will have slowly begun to fall.

It's not about Alito's credentials, no matter how much the Republicans are screaming the "he's qualified!" line as the reason that Bush is "entitled" to his choice. It's about Judge Alito's view of America and how it will play out on the bench. It's about what we already know on that subject, which is not reassuring to anyone who isn't a rich white male corporatist (and is even distressing to many of those whose morals have not taken second seat to their greed and lust for power.) A view of America that, no matter what the tyrannous majority that gave us Emperor Bush and the Republican Legislative Majority believes is best, the Senate representatives of the minority who will be tyrannized if the Court begins to abandon the liberal, rights-based jurisprudence of the last 60 years, has both the right and the DUTY to stand up and fight to protect the rights of their constituents.

By Any Means Necessary.

Including the ultimate means available in a Senate appointment fight when a substantial minority believes that an appointment is not in the best interests of its constituency: the filibuster.

Democrats, do your duty. Filibuster Judge Samuel Alito.

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Wednesday, January 18, 2006

Damn I'm Going to Miss Justice O'Connor

I had, and have, a major beef with Justice O'Connor about discrimination based on race. Her decisions, from Croson on down, were largely clueless and insensitive.

But she has always, always, ALWAYS, had a level-head view when it came to women's equality at a practical level, despite her conservativism. Even when that level-head caused her to reject arguments that have passionately been claimed to be necessary to protect women.

As she did in today's short, yet pretty clear, decision in Ayotte v. Planned Parenthood of New Hampshire.

The issue in Ayottewas, of course, that bugaboo known as parenal notification. I call "parental notification" a bugaboo because it is the single biggest issue dividing women when it comes to abortion and the divide is NEVER going to be resolved. If polls are to be believed, parental notification is supported by up to 80% of the country and nearly 2/3 of *pro-choice folks* (a group in which I include myself, all strident arguments I've had with knee-jerk abortion rights purists aside). In other words, those that advocate against parental notification are an absolute minority, including among pro-choice folks. Yet that minority manages to raise so much hell over this issue that you'd think parental notification laws were a close call, politically, in any but the "bluest" of blue states. (Hell, it was a very close call here in California just two months ago, even though this state is staunchly pro-choice and Proposition 73, was damned-near transparent in its efforts to sneak in an anti-choice "camel's nose under the tent" definition of pregnancy into our law).

That's why today's decision in Ayotte is, IMO, a rather crafty compromise by Justice O'Connor. There's something in it for everyone, at least on this particular issue.

The New Hampshire statute at issue in today's Ayotte decision requires that a physician obtain proof of parental notification unless, in part, the abortion was necessary to prevent the minor's death. There was no other "health exception" provided by the statute, even for a medical emergency. Planned Parenthood sued and obtained a permanent injunction against any enforcement of the law from the lower court. Notably, however, the lower court provided two, alternative grounds for its finding of unconstitutionality: (a) the law was facially unconstitutional because it lacked a health exception as required by Supreme Court precedents; and (b) it was unconstiutional as applied because it placed an unreasonble burden on doctors' exercise of good-faith medical judgment (since they had to certify that death would take place without the abortion.)

The appeals court affirmed the injunction, citing Stenberg v. Carhart, Casey and Roe and adopting the reasoning of the lower court. It also contended that the statute was void for vagueness, given its criminal law implications where doctors were concerned.

Today's decision is a masterful exercise in "splitting the baby." O'Connor's decision, written for a unanimous court, starts by making clear what the Ayotte case is NOT about:

We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response?

I have visions of folks, rightfully feeling desperate and panicked because of the Alito situation, ceasing to read right there. And misreading it as a decision to uphold Roe v. Wade. Unfortunately, reading the very next sentence with a level head makes clear that this is indeed a compromise decision that is not precisely in favor of the most expansive reading of abortion rights:

We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.

The decision, notable for its brevity (10 pages), highlights three things that distinguished the Ayotte case from the last "health exception" case, Stenberg v. Carhart in which the "Partial Birth Abortion" statute was struck down because it did not provide for a health exception:

As the case comes to us, three propositions—two legal and one factual—are established. First, States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their “strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.”

Second, New Hampshire does not dispute, and our precedents hold, that a State may not restrict access to abortions that are “ ‘necessary, in appropriate medical judgment, for preservation of the life or health of the mother.’

Third, New Hampshire has not taken real issue with the factual basis of this litigation: In some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health. . .New Hampshire has conceded that, under our cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks.

On the strength of these three factual and legal pillars, the Court then proceeds to unanimously reverse the Court of Appeals finding the New Hampshire parental notification statute was unconstitutional on its face, and to remand the case back for a trial court evaluation of whether New Hampshire really *will* accept a narrowed law as it represented to the Court; and, if it will, a narrowing and subsequent upholding of the statute.

What can we take from today's decision in Ayotte, in light of this? Well, it's early yet, but here's my take on it after two reads: But it is IMO naive to read today's decision as any real affirmance of Roe or Casey. It isn't, technically; the issue was not presented and the Court declined in its first paragraph to take up the larger issue of revisiting abortion precedent. One can read into the silence an affirmance, but narrowly drawn cases such as Ayotte which do not present broad constitutional questions generally are not precedent for broad constitutional pronouncements.

Yet today's decision sends a message, IMO, nonetheless. It appears to provide a road-map to how those who are indeed anti-abortion can survive Supreme Court scrutiny. It states, essentially, that if a Legislature creates a well-tailored law placing limits on abortion rights, and makes clear during litigation that it will accept narrow injunctive relief if the statute would otherwise be struck down as written, the Courts have a duty to try and uphold the legislative intent in passing the statute; i.e. a duty to snip, cut and paste as necessary to uphold the statute as applied, rather than invalidate it wholesale on a facial challenge. Today's unanimous decision makes that clear to me.

Frankly, that does not bode well for legal challenges that are just beginning for laws like the Child Interstate Abortion Notification Act aka Child Custody Protection Act, still awaiting a Senate vote having been passed *three times* by the House in varying forms. If the critical issue is Legislative intent where abortion legislation is concerned, then the principles of comity and home rule (also discussed ad infinitum in Supreme Court precedent) are going to come into play in a way that jurisprudence before today's decision in Ayotte focusing on upholding Legislative intent would not have suggested.

So like it or not, the real fight *is* still is in the State legislatures. One by one. The theoretical right to an abortion may be preserved in passing in today's decision in Ayotte, but reading today's decision makes clear, at least to me, that the devil is, and remains, in the details at the state level, and that those details are going to be entitled to some judicial deference if it is not impossible to uphold a statute limiting the exercise of abortion rights under an "undue burden" standard. And, since the entire right-wing strategy to undo Roe and Casey is grounded precisely in the belief that the individual states, not the federal government, are where the issue of abortion rights belongs in toto, one can see as much for concern for women in today's Ayotte decision as reason for celebration.

But you have to give it to Justice O'Connor. She definitely split the baby on this issue. She compromised. And it is that type of practical compromise, recognizing that the country itself is still fighting a cultural war on this issue, that made her tenure on the Supreme Court what it is. At least, where issues involving women are concerned.

This case was being watched carefully, both to see what Chief Justice Roberts was going to do with his first abortion case, and to see whether it could be mined for arguments to help shore up the flagging opposition to Judge Samuel Alito's appointment, on the grounds that his anti-abortion votes would be the death-knell to Roe.

Yet as is the case with most Supreme Court decisions, there's not a lot of political traction relating to either of these justices that one can find clearly on the face of the decision itself.

(P.S. I think O'Connor is 100% right on the question of whether or not children have a right to have abortions without the knowledge of at least one of their parents: they don't. Nor should they. I would be dishonest if I did not admit to my own biases here. But I have never made a secret about where I come down on the question of parental notification, legally or morally. IMO, a parent's constitutional right to parent their child in the manner they see fit as long as it is not abusive or neglectful -- a right upheld over and over again by the Supreme Court itself -- trumps a child's non-constitutional right to seek and obtain medical treatment of *any* kind, including an abortion, without the knowledge of her parents, unless there is clear proof that the parents are, or will be, abusive if they are given the knowledge.

Despite this view, I do not believe in a requirement for parental *CONSENT*. Such consent, under the reasoning of both Roe and Casey, cannot be required without trumping a pregnant girl's s constitutional right under existing jurisprudence to make the ultimate decision with her doctor. (A right that O'Connor made clear in Casey does not necessarily include the right to make that decision alone without input from other people.) Now, I am one of those folks that doesn't really care if the knowledge is *before* or *after*, so long as it exists. But I am in the minority on that issue even amongst those supporting parental notification, because my reasons for advocating for parental knowledge are not about trying to impose my personal religious or other negative views about abortion on my daughters. They are, instead, to provide the most rational vehicle make sure, as much as humanly possible, that whatever circumstances resulted in their clearly ill-timed pregnancy as minors *do not repeat themselves*. Whether that's the extremely rare poster-child repeatedly held up by rabid pro-abortion folks (parent or stepparent sexual and/or violent abuse) or the likely day-to-day truth of teenagers "not being either contraceptively-responsible or abstinent" which leads to most teen pregnancies.

But then again, I'm a believer in Old School Black Parenting. I admit this.)

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Life on the Political Plantation

What a bunch of hullabaloo.

Watching the amount of cyber-whining being spilled over this by the Right, you'd think that Hillary called every Republican's mama a ho at Canaan Baptist on Monday. Think what you will about Hillary Clinton's analogy between the House of Representatives and a plantation, the hypocrisy of Republicans actually complaining about her analogy is too much to stomach. Atrios succinctly put the smack down on Republicans for it yesterday:

Regarding this Hillary flap, please just click this link and have fun.

The link, of course, was to a Google search with the phrase "democratic plantation" as the search term. And the link mined conclusive proof that Republicans are, at least on this "Hillary is Bad because she said Republicans are running a Plantation" issue, Hy-po-crites. With a Capital H.

Unfortunately, we then have the idiots in charge of the Official Democratic Party Line who take a situation that is clearly Much Ado About Nothing and make it into yet another opportunity to laugh at the cluelessness of the Democratic Party when it comes to race. Like Elaine Karmarck, who reportedly tried to defend Hillary's legitimate criticism of the Republican held-House by saying the following during a nationally televised Fox interview "doing a job.":

Plantations were terrible places where people were forced into doing certain jobs. But at least they were doing jobs.

Umm. No, hon. It was a just a *little* more complicated than that.

This idiocy merely proves to me that there is nothing at this point more horrifying and stupidity-inducing to white politicians and their supporters on both sides of the political aisle than the ongoing boogeyman of race. Its hallmarks -- including the legacy of slaves and slavery -- continue to be used willy-nilly in political rhetoric to evince the worst things possible. And then, when folks get their backs up (because raising the specter of race really does evince a reaction much like calling people's mamas hos) people trip all over themselves.

And, of course, the hullabaloo would be incomplete without the parade of "official Black spokespersons" getting up and either supporting wholeheartedly or lambasting Hillary's remarks, depending on party affiliation.

What ridiculousness. Hillary Clinton makes an insensitive, bad analogy - to wit, that currently being in the political minority in an elective body is the functional equivalent of being a slave, a lifelong condition in which getting your ass physically tore up just for living was not uncommon and in which the only guarantee of release was death - and nobody calls her out on it. Not even Black folks. But then, adding insult to injury, President Bush, his lapdog Republicans, and his Uncle Toms, squeal like a stuck pig even though Republicans have regularly made the precise analogy themselves back in the day? And apologists make matters worse by taking a politically convenient piece of rhetoric and actually trying to explain it away on "logical terms"?

Give me a break.

The more important issue for me is this: What does this type of thing say about how both sides of the political aisle view Black people, Black people's history and the genuine harms that slavery left behind? It seems, frankly, as if we remain the convenient political football. Politicians appear to have no shame talking about us, analogizing to our miserable experiences to describe their own (not even comparable) "suffering" and holding up Black folks' experience regularly to score political points (as if they actually know anything about them).

This might be fine if either side took us and our unique issues seriously in the political arena when it came to campaigns, bills presented, and votes. Takes seriously as in make them a priority for ongoing advocacy and policy, acknowledging that race is a factor that legitimately must still be taken into account in this country (instead of trying to insist that it's all about -- and only about -- class, a convenient device that allows us to continue avoiding all the Hard Stuff.)

But, it's obvious that they do not really take us seriously. Neither side.

Factor into the mix when you think about this flap what is now happening to Mayor Ray Nagin, who also made some race-based comments and analogies on Martin Luther King Day. Mayor Nagin's fired-up exhortations on Monday that N'Awlins will once again be a Chocolate City because God wants it that way, (and that, BTW, Katrina is an example of God punishing Black folks for our excesses, and things get even more surreal. Obviously folks are up in arms. It seems more over the Chocolate City comment than the "God is giving us an asswuppin" comment. Since that's the only one that, so far, he's been forced to apologize for.

Why, exactly?

It does not take much of a Google search to find *thousands* of immediately post-Katrina references talking about the displacement of New Orleans' overwhelmingly Black and poor and the danger of N'awlins becoming a white-bread Disneyland because it had apparently permanently lost the African-American majority that perversely helped to make New Orleans a crown jewel of American culture, whether we're talking about jazz music, voodoo, or even just Creole food. This was assumed to be a real problem over and over and over again. By politicians, pundits, official Bush spokespersons, and official "Black spokespersons".

Yet Mayor Nagin essentially tries to reassure people on Monday that New Orleans' racial balance will be restored despite adversity -- it will be again a "Chocolate City", mathematically speaking -- and he's called an idiot? Or crazy?


Since clearly it is not because he said something that millions of other people have said since September, 2005, it must be because he forgot the Rules, one of which is this: it is perfectly OK for non-Black people to advocate for things affecting Black people while referring to race, and even to coopt our suffering as similar to their own while they do so. However, if one of *us* does it, we are by definition "exclusionary", and "playing the race card", both code words for "hating on white folks."

It cracks me up that folks are actually saying with a straight face that Mayor Nagin - corporatist first and foremost -- was actually making non-Black people feel "not welcome". As if the overwhelming majority of folks in New Orleans right now (if one believes the photos routinely coming out of the numerous media celebrations asserting that "New Orleans is rebounding") aren't white. I guess somehow they needed a special invitation to come back? In contrast to the hundreds of thousands of Black people that are just....gone, with no way to get back?

Frankly, my only beef with Nagin on his "Chocolate City" comment is that he forgot the First Rule of Black Politics: Never ever EVER mention that you actually are thinking about Black people in any terms that might be construed as putting them "ahead", in terms of your priority, of white people. It's OK to do this if you are referring to our status as perennial victims needing government help, as it is if you are discussing our alleged collective cultural dysfunction) But otherwise? It's a political death sentence, as has been proven over and over and over again.

Who knows why Nagin said what he did? Maybe Nagin has been hanging out with his former Republican cronies too long, and he actually thought the same rules applied to him as everyone else. If that's so, he really needs to develop some political chops. (Perhaps he should spend some time with Barack Obama, the current master of the art advocating for Black folks' interests without ever actually mentioning the word "Black.")

Since we all know that the minute he does that, he's just another threat to the majority of politically active folks -- as much on the left as on the right -- who have a deep-seated psychic need to believe that's "all behind us." The same folks that can manage to claim with a straight face that a 69.5% Black city had as its "true identity" an evenly flavor-balanced Neapolitan ice cream (1/3 chocolate, 1/3 vanilla, 1/3 strawberry....although I don't know *who* they're talking about when you think about the strawberry......Cajuns, maybe?) Suggesting that New Orleans return to its former state -- in which indeed it was fairly called a Chocolate City in the same way that Washington DC was when it was serenaded by Parliament -- is probably just too.....hell, too *nationalist*.

Maybe it's that Fear of a Black Planet thing.

(BTW, given the fallout from Mayor Nagin's gaffe, I wonder what we are now supposed to call DC, also known in the Black community as Chocolate City? Fudge Ripple?)

On the other hand, Mayor Nagin's God comments worry me. It might well be that he really is cracking up from Post-Katrina Stress Disorder, as some claim and as Nagin himself joked on Monday. After all, most folks don't run around claiming to talk to dead people, Dr. King or no Dr. King. Mayor Nagin definitely didn't get that "God is punishing Black folks" thang from any rational assessment of the problems New Orleans continues to face post-Katrina, placed back into the context of 2005, a year in which Mother Earth made plain who was still boss, worldwide. If one is even going to Go There, and there is absolutely no reason to do so, the only rational conclusion one can take from last year's natural disaster juggernaut that God is getting pretty pissed off at *everybody*. Only someone as troubled as Pat Robertson would even claim that God wastes his/her time chastising individuals for their individual political failings while they are still here on earth.

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Friday, January 13, 2006

Why Discourse in America Has Gone to Hell in a Handbasket

MASSIVE KUDOS to Ellinton at DailyKOS for his sharp ear and extraordinary ability to create the very *feel* of one of many insane discussions those on the left have had to have with those on the right for the past 20 years, and especially in the past 5. Hell, we've seen shades of it just this week during the Alito hearings.

Nobody who has really been trying to make headway talking to wingnuts (or even anyone who regularly reads FreeRepublic for laughs) can deny that this spoof is, indeed, unfortunate reality where trying to talk across the aisle is concerned.

Here's Elliton's masterpiece:

Re: How Conservatives Argue: A Case Study

by ellinton [Subscribe]
Fri Jan 13, 2006 at 12:14:48 PM PDT

Liberal: The USA has fifty states.

Conservative: No, it doesn’t.

Liberal: Yes, it does. The USA has fifty states.

Conservative: What about Guam? What about that Guam, huh? Or the Virgin Islands?

Liberal: Those are territories, not states. The USA has fifty states.

Conservative: Oh, so you’re saying those don’t count?

Liberal: Yes.

Conservative: Oh, so the people there don’t count? They’re not good enough, huh? I thought you liberals wanted everybody to be counted.

Liberal: No, I said the territories don’t count as states. The USA has fifty states.

Conservative: You’re really something, you know that? You liberals are always going on about how all of us conservatives are racists, how we don’t care about anybody but people who look like us. But you don’t even want to count the blacks who live in Guam as Americans.

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* ellinton's diary :: ::

Liberal: First of all, I never said all conservatives are racists.

Conservative: Yes, you did.

Liberal: No, I didn’t.

Conservative: Michael Moore says it.

Liberal: I’ve never heard him say that.

Conservative: Yes, he does! He most definitely does!

Liberal: Look, I don’t know what he says. That’s beside the point. And the people in Guam “count,” whatever that means. I don’t even know who lives in Guam; I don’t know the first thing about Guam. I’m just saying Guam isn’t a state – it’s a territory. The USA has fifty states.

Conservative: What about Puerto Rico?

Liberal: What?

Conservative: What about Puerto Rico, huh? You love all those Mexicans coming across the border stealing our jobs – you must LOVE Puerto Rico, right?

Liberal: I’ve never been to Puerto Rico.

Conservative: Well, I have, and those kind of people would be pretty offended to hear liberals like you saying they aren’t real Americans!

Liberal: I didn’t say that!

Conservative: You said they didn’t count!

Liberal: I didn’t say that either! No, wait, just wait… (takes deep breath). I only said the USA has fifty states. Puerto Rico isn’t a state – it’s a commonwealth.

Conservative: And they don’t speak English!

Liberal: Well, many Puerto Ricans do.

Conservative: How do you know that? I’ve been there – you haven’t!

Liberal: All right, OK, fine, whatever. But the USA has fifty states.

Conservative: Well, I say Puerto Rico counts.

Liberal: Fine, but not as a state.

Conservative: Well, that’s YOUR opinion.

Liberal: It’s not my opinion – it’s a fact.

Conservative: Says you!

Liberal: No, not just “says me.” It’s a fact. Look it up.

Conservative: I don’t have time.

Liberal: You don’t have time to find out if the USA has fifty states?

Conservative: Listen, you may have time to sit around all day surfing on your liberal websites, downloading Michael Moore, but I’ve got things to do.

Liberal: Like reading about blacks in Guam and Mexicans in Puerto Rico?

Conservative: See, that’s why you guys always lose. I’m trying to have a nice conversation, and you just keep up with the insults!

Liberal: Listen, I didn’t mean to insult you.

Conservative: Oh, yes you did!

Liberal: No, look, I’m sorry, OK? I didn’t mean to insult you. Honestly. It’s just that… well, the USA has fifty states. That’s a fact. And I’m just trying to state a fact, and you’re getting very defensive, and…

Conservative: Oh, so now I’m defensive.

Liberal: Well…

Conservative: You just said you weren’t going to insult me!

Liberal: Look, I’m just trying to say the USA has fifty states!

Conservative: According to YOUR sources!

Liberal: MY sources?! What are you talking about? Look it up!

Conservative: I told you, I don’t have time to spend all day cruising the internet, looking up geography questions! Maybe if you were busier at your job, trying to live the American Dream, you wouldn’t have time for all this hate!

Liberal: I work hard at my job!

Conservative: Then why are you spending all day downloading Michael Moore?

Liberal: I don’t spend all day downloading Michael Moore! I don’t even know what you mean by that! All I’m saying is that the USA has fifty states!

Conservative: Again, according to YOU!

Liberal: Not just me! Here, here’s the World Book Encyclopedia. Look it up – it’s fifty states!

Conservative: Oh, sure, the World Book! Yeah, like I’m going to believe the World Book!

Liberal: What?

Conservative: Come on, it’s a liberal rag!

Liberal: (Long, teeth-gnashing pause) Look, just look up “United States of America.” Ten bucks it says, “the USA has fifty states.”

Conservative: Ten bucks, huh?

Liberal: Yeah, ten bucks. (pause) Wait, that’s the “M” volume.

Conservative: I know.

Liberal: You need to look under “U” for “United States.”

Conservative: I’m not looking for “United States.” I’m looking for “Moore, Michael.”

Liberal: What?!

Conservative: And when I find a big glowing article about him, you’re going to owe me ten bucks!

Liberal: Why would I owe you ten bucks?!

Conservative: You bet me ten bucks that the World Book Encyclopedia isn’t liberal.

Liberal: No I didn’t!

Conservative: Yes, you did! You bet me ten bucks that I couldn’t find a liberal article in the World Book. So when I find Michael Moore’s picture, you owe me ten bucks!

Liberal: Oh, my lord…

Conservative: AHA!

Liberal: Listen, you idiot, just because you found Michael Moore’s picture in the World Book doesn’t mean that I owe you ten bucks! It doesn’t mean the World Book is a liberal encyclopedia! And it certainly doesn’t mean the USA doesn’t have fifty states!!

Conservative: Oh, no? Look at this!

Liberal: (pause) “Massachusetts”?

Conservative: Bingo!

Liberal: What the hell does Massachusetts have to do with anything?

Conservative: The COMMONWEALTH of Massachusetts!

Liberal: So?

Conservative: So you said Puerto Rico is a commonwealth!

Liberal: Oh, no…

Conservative: You ADMITTED Puerto Rico was a commonwealth! Admit it, you said it!

Liberal: Oh, man…

Conservative: So if Massachusetts is a commonwealth, and Puerto Rico is a commonwealth, then they BOTH must be states! HA!

Liberal: OK, look…

Conservative: You owe me twenty bucks!

Liberal: What?

Conservative: Come one, pay up! Twenty bucks, let’s go!

Liberal: I don’t owe you twenty bucks!

Conservative: And I’m not even counting Pennsylvania!

Liberal: Pennsylvania?

Conservative: That’s a commonwealth, too!

Liberal: It’s a commonwealth, but…

Conservative: And Washington!

Liberal: All right, look, I lived in Seattle – Washington is NOT a commonwealth!

Conservative: Seattle’s not even a state – it’s a city!

Liberal: Yes, it’s a city, in Washington State! Washington’s a state!

Conservative: I’m talking about Washington D.C.

Liberal: What?

Conservative: Washington D.C. It’s a city.

Liberal: I know what it is!

Conservative: Well, you liberals are always going on about “Statehood for Washington!” Which, you admit, is already a state!

Liberal: Washington D.C. is not a state!

Conservative: Washington State is!

Liberal: You just said Washington D.C.!

Conservative: And you said it should be a state!

Liberal: I never said that! I mean, it should be… but I never…look…

Conservative: Should Washington be a state?

Liberal: Well…

Conservative: Simple question.

Liberal: Washington State?

Conservative: Yes or No?

Liberal: Washington State or Washington D.C.?

Conservative: Right.

(Long pause)

Conservative: He snorts cocaine.

(Long, painful pause)

Liberal: (slowly) This is Washington D.C. you’re talking about.

Conservative: Yeah. The mayor snorts cocaine.

Liberal: Actually, he’s no longer the mayor…

Conservative: I don’t think a state should have a governor who’s used drugs.

Liberal: He’s not the governor; Washington’s not a…

Conservative: Except maybe California.

Liberal: OK, OK, stop for a moment…

Conservative: I mean, that was a long time ago…

Liberal: Listen, listen…

Conservative: I don’t see Michael Moore making any movies about cocaine in Washington State, do you?

Liberal: Please, STOP!


Liberal: Look, I’m just trying to make a simple point here…

Conservative: What about…

Liberal: STOP!!!

(long pause)

Liberal: I’m just trying to make a SIMPLE point here. It’s not a big deal – it’s just a fact. The USA has fifty states. That’s all! Yes, Puerto Rico is a commonwealth, but it isn’t counted among the fifty states. Yes, Massachusetts and Pennsylvania are commonwealths too. So are Virginia and, I think, Kentucky. I don’t know about Kentucky for sure, and you know what – it doesn’t matter! They’re considered states, OK? They’re states. Washington D.C. isn’t one, even though I wish it was. Guam isn’t one. There are only fifty. Fifty states. Fifty stars on the flag – fifty states. That’s all. Fifty.

(long pause)

Conservative: Rush is so right about you people.

Liberal: Huh?

Conservative: Rush. He gets it. You people are the worst.

Liberal: I don’t…

Conservative: Here I am, trying to have an honest political discussion, and all you can do is bring up this liberal claptrap! You call people like Rush racists, but you don’t want to count Mexicans as Americans. You insult the Governor of California every chance you get. You get all your information from encyclopedias and Michael Moore. You want free cocaine in Washington, and you want Seattle to become a commonwealth, and you won’t pay me my fifty dollars even after I proved that blacks run Guam! And then, worst of all, you insult our flag and our troops!!! You disgust me!

Liberal: Good-bye.

Conservative: See, there you liberals go again! Sneaking off to download porn from Kentucky! I’m not forgetting you owe me 100 dollars!


Conservative: That’s it, cut and run!

(long pause)

Conservative: Why do you hate America?

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Democrats - Face-Timing Away Our Rights

On this Friday the 13th, PaminDurham has let loose over at the House Blend, reflecting a lot of my week-long frustrations about the Alito confirmation hearings. Since she's said it better than I can, I'm going to quote from her post here, and link to her great work, which is a must read:

The legacy of a Supreme Court appointment can change profoundly the most basic rights and privileges of citizens, yet these lame-ass Dems didn't seem to take seriously that Alito is a man capable of casting votes to roll the clock back on fundamental rights and liberties. Even worse, there was a generous paper trail out there take him out with if skillfully handled -- and they didn't know what to do with that either.

. . .What I saw up there were Dem Senators in the end, just enjoying their face time on TV, pontificating, looking outraged for their constituents -- they were already pre-programmed by their staffs to ask the same lame questions over and over, and left room for Alito, a man with a clear paper trail, to obfuscate so easily.

The system is broken.

Indeed it is.

If you do nothing else today, you should read the entire post by Pam. It's worth every minute of your time.

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Thursday, January 12, 2006

The Stupidity of Ignoring Alito's Achilles' Heels

While those elements of the left still afflicted with strategic tunnelvision find Alito's refusal yesterday to call Roe v. Wade settled law dispositive of his nomination, it seems clear that the real chink in the Alito armor during these hearings is going to surround his personal bias: against women, and against people of color. Watching things, it is clear that the Republicans are far more afraid of this issue than anything having to do with abortion rights.

Good. It's about time someone other than a handful of folks of color started making an issue out of it. Since almost none of even the slimiest Republithugs can bring themselves to publicly embrace a known bigot, whereas they will happily sing Kumbaya in the town square with a rabid pro-choicer, no matter what the left thinks about it.

Alito's decisions are riddled with bias against women and people of color claiming bias and discrimation. Against married women. Against immigrants. This is true, all Republican screaming about US v. Kithcart (a case I will blog since they keep saying it means something it simply does not mean if you look at its subsequent history) aside.

Yet already, the left is saying that the CAP issue has "no traction" and was a "waste of time". Folks are *angry* that most of yesterday was spent on it. It's a "no big deal" - whether he actually believed in CAP, or just lied his ass off on his application for a job in the Reagan administration.

No wonder our side got rolled on Roberts. Folks are so stuck in trying to get the "big win" on things like abortion when no such win is possible. The public itself is not going to demand that Alito not be confirmed on the abortion issue. It will care about things like bigotry (yes, more than abortion; only the left seems relatively unconcerned about it), and overreaching of the President's power. Continuing to emphasize any subject where all points that can be made have now been made and all avenues of inquiry have been exhaused in a futile (and frankly silly, given the law itself) demand that Alito promise that Roe is settled, is what really is a *waste of time*.

We have yet to have a reasonable answer from Judge Alito on CAP, on the questions raised by his seeming endorsement of unitary executive theory, or even on the divergence between what he says about stare decisis and what he actually has done as a judge. Yet the mainstream left wing is already throwing in the towel on CAP merely because they couldn't find his name blaring on a masthead of the Prospect magazine (as if they would have, since his membership was *post graduation*; duh). Forget if we can actually do some damage to the nominee in the court of public opinion on this issue. We'll just give up, because it's "not important".

If the left doesn't t stick to the stuff that so far has actually hurt this nominee (and so far, the only bleeding wounds have been over CAP, his facile interpretations of stare decisis as they related to 3rd circuit precedent, and the Executive Privilege/unitary executive issue) we're guaranteed a reshaped Supreme Court when he's confirmed, with the only consolation for these so-called experts on leftist political strategy their retaliation against those who voted for him in '06 at the polls.

But all their threats of retaliation still leave us stuck with Associate Justice Alito for around the next 30 years.

And folks wonder why I'm on the verge of abandoning the traditional left, and the mainstream Democratic Party. Most of them have the strategic skills of a goat, unable to get past their pet issue or sing in any different note than that which they already sing. Yet in the face of a rather long history of defeat at this point, still insist they know what they are doing, and what is or should be "most important."

When in fact they have clearly forgotten that the most important thing in these situations is to WIN. And if taking up a banner you might not otherwise think important is what has the best chance of leading to a win, it doesn't matter, because you still have won.

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