I had class today, and one of my students remarked that the Derrick Bell piece I assigned (Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470 (1976)) was one of his favorites of the year. Of course it was -- Bell was a brilliant thinker who will be missed.
* * *
Rush Limbaugh won't apologize to LRA victims after defending the terrorist cult group as simply a group of Christians that Obama wanted to oppress.
Tom Friedman assesses Barack Obama's foreign policy successes and failures.
The momentum to recall Scott Walker may have stalled, but it is still looking like a razor-tight race.
Some people have promoted this attack on nation-states as "the idea that will not die", but I'm supremely unconvinced. It is hardly the case that multi-ethnic states -- even those without weak governmental structures -- have been paragons of stability and harmony. And there are plenty of post-national movements that still have quite their share of blood on their hands.
San Francisco is a very, very strange place.
85-year old state senator releases a Rocky ad. Oh for cute.
Re: Occupy DC: "When the Jews show up, you know it's serious."
The mystery of why Rep. Paul Ryan (R-WI) is seen as some sort of wonk, rather than a nutjob hack, endures.
Showing posts with label Scott Walker. Show all posts
Showing posts with label Scott Walker. Show all posts
Wednesday, October 26, 2011
Tuesday, May 17, 2011
Making it Worse on Yourself
Wisconsin Scott Walker (R), showing that his astounding lack of empathy does not extend only to the working class, is attempting to withdraw his defense of a state law permitting same-sex couples hospital visitation rights, on the grounds that it contravenes a state constitutional ordinance barring same-sex marriage, as well as "legal status[es] identical or substantially similar to that of marriage for unmarried individuals."
Obviously, there is a parallel to the federal Department of Justice declining to defend the Defense of Marriage Act on their belief that it violates the federal constitution. Procedurally speaking, I don't have strong thoughts on when, if ever, it is appropriate for the executive to not defend a duly-enacted law. But that debate does not obviate the substantive difference between seeking to affirm the equal human rights of all Americans, and trying to denigrate and destroy those families Scott Walker thinks are comprised of second-class citizens. I also find it notable the way conservatives seamlessly pivot between noting that marriage isn't a prerequisite for such things as hospital visitation rights (to demonstrate that there is no rights-violation from the marriage proscription), while simultaneously fighting tooth-and-nail to prevent gay couples from enjoying those privileges. It's rather dizzying.
In any event, if I were a judge hearing this argument, I'd be sorely tempted to invoke the doctrine of constitutional avoidance to reject Governor Walker's position. The doctrine of constitutional avoidance basically counsels courts to interpret ambiguous statutory (or here, state constitutional) provisions in ways that "avoid" causing constitutional problems (notably, this doctrine does not require that the Court affirmatively state that the "problematic" interpretation necessarily would be unconstitutional, only that it raises a significant specter of constitutional controversy). The more bans on gay marriage impinge on specified, concrete rights and privileges of gay couples, the harder it is to maintain that they don't constitute a prima facia equal protection violation. I think that the text of the Wisconsin amendment is, at best, ambiguous as applied to hospital visitation privileges, so it seems like a prime candidate for avoidance. And, of course, phrasing the ruling as an exercise in avoidance helps build precedent for what should be clear -- the linkage between bans on gay marriage, and restrictions of the rights of homosexual couples, raises real equal protection concerns.
Obviously, there is a parallel to the federal Department of Justice declining to defend the Defense of Marriage Act on their belief that it violates the federal constitution. Procedurally speaking, I don't have strong thoughts on when, if ever, it is appropriate for the executive to not defend a duly-enacted law. But that debate does not obviate the substantive difference between seeking to affirm the equal human rights of all Americans, and trying to denigrate and destroy those families Scott Walker thinks are comprised of second-class citizens. I also find it notable the way conservatives seamlessly pivot between noting that marriage isn't a prerequisite for such things as hospital visitation rights (to demonstrate that there is no rights-violation from the marriage proscription), while simultaneously fighting tooth-and-nail to prevent gay couples from enjoying those privileges. It's rather dizzying.
In any event, if I were a judge hearing this argument, I'd be sorely tempted to invoke the doctrine of constitutional avoidance to reject Governor Walker's position. The doctrine of constitutional avoidance basically counsels courts to interpret ambiguous statutory (or here, state constitutional) provisions in ways that "avoid" causing constitutional problems (notably, this doctrine does not require that the Court affirmatively state that the "problematic" interpretation necessarily would be unconstitutional, only that it raises a significant specter of constitutional controversy). The more bans on gay marriage impinge on specified, concrete rights and privileges of gay couples, the harder it is to maintain that they don't constitute a prima facia equal protection violation. I think that the text of the Wisconsin amendment is, at best, ambiguous as applied to hospital visitation privileges, so it seems like a prime candidate for avoidance. And, of course, phrasing the ruling as an exercise in avoidance helps build precedent for what should be clear -- the linkage between bans on gay marriage, and restrictions of the rights of homosexual couples, raises real equal protection concerns.
Wednesday, April 06, 2011
Madison Versus the World
All ballots (minus absentees, I believe) have been tallied, and JoAnne Kloppenburg has pulled out an exceptionally tight, 200-vote-margin victory over incumbent David Prosser. The election was widely considered the first salvo in the recall fight sparked by Gov. Scott Walker's radical anti-union agenda, and Walker was eager to downplay what it all means for those races.
The problem is that this doesn't actually tell the story of yesterday's contest at all. While Madison and (to a lesser extent) Milwaukee are key Democratic strongholds, it is not those two cities versus the rest of the state. Much the opposite: it's those two cities versus Milwaukee's suburbs, with the rest of the state being far more swingy than one might expect.
Look at this results map. Obviously, large chunks of Kloppenburg's margins came from Milwaukee and Madison (Dane County), though actually the bluest parts of the state are in the northwest corner. Meanwhile, the darkest red swaths are Ozaukee, Washington, and Waukesha counties -- the Milwaukee suburbs. Beyond that, the divide is not Madison versus the rest of the state, but east and west -- the eastern part of the state being more conservative, the western portions more liberal.
And while Walker's right that the recall elections aren't occurring in Madison, they're not occurring in Waukesha either. None of the five most vulnerable Republican state senators -- the five with re-elects under 50% -- are anywhere near Milwaukee. Dan Kapanke's district is in southwest Wisconsin, anchored in LaCrosse -- a pretty blue area. Self-inflicted wounds notwithstanding, Randy Hopper's geographically in good shape, with the help of the GOP stronghold of Fond du Lac. Luther Olson is right on the border of where red meets blue, with conservative Waushara and Waupaca counties alongside more liberal climes in Columbia and Sauk counties. Shawano, Outagamie, and Brown counties are all red, which is good news for Rob Cowles, but Sheila Harsdorf is like Olson in that her district straddles a red/blue divide (here, where Pierce and Dunn counties meet St. Croix and Polk, plus Burnett).
This isn't to say this is terrible terrain for the GOP (except for Kapanke, who may well be toast). But just as Democrats aren't operating out of their home base in Madison, Republicans aren't on their strongest Milwaukee metro turf either. If Walker thinks he can chalk this race up to Madison saving the liberal day, he's got another thing coming.
Gov. Scott Walker said this afternoon that the spring election results show there are "two very different worlds in this state."
"You've got a world driven by Madison, and a world driven by everybody else out across the majority of the rest of the state of Wisconsin," Walker said at a press conference in the Capitol.
[...]
Walker added that Justice Prosser's performance in many parts of the state bodes well for GOP senators who may face recall elections later this year.
"For those who believe it's a referendum, while it might have a statewide impact that we may lean one way or the other, it's largely driven by Madison, and to a lesser extent Milwaukee," the governor said. "But those Senate recall elections on both the Democrat and Republican side aren't being held in Madison, they aren't being held in Milwaukee."
The problem is that this doesn't actually tell the story of yesterday's contest at all. While Madison and (to a lesser extent) Milwaukee are key Democratic strongholds, it is not those two cities versus the rest of the state. Much the opposite: it's those two cities versus Milwaukee's suburbs, with the rest of the state being far more swingy than one might expect.
Look at this results map. Obviously, large chunks of Kloppenburg's margins came from Milwaukee and Madison (Dane County), though actually the bluest parts of the state are in the northwest corner. Meanwhile, the darkest red swaths are Ozaukee, Washington, and Waukesha counties -- the Milwaukee suburbs. Beyond that, the divide is not Madison versus the rest of the state, but east and west -- the eastern part of the state being more conservative, the western portions more liberal.
And while Walker's right that the recall elections aren't occurring in Madison, they're not occurring in Waukesha either. None of the five most vulnerable Republican state senators -- the five with re-elects under 50% -- are anywhere near Milwaukee. Dan Kapanke's district is in southwest Wisconsin, anchored in LaCrosse -- a pretty blue area. Self-inflicted wounds notwithstanding, Randy Hopper's geographically in good shape, with the help of the GOP stronghold of Fond du Lac. Luther Olson is right on the border of where red meets blue, with conservative Waushara and Waupaca counties alongside more liberal climes in Columbia and Sauk counties. Shawano, Outagamie, and Brown counties are all red, which is good news for Rob Cowles, but Sheila Harsdorf is like Olson in that her district straddles a red/blue divide (here, where Pierce and Dunn counties meet St. Croix and Polk, plus Burnett).
This isn't to say this is terrible terrain for the GOP (except for Kapanke, who may well be toast). But just as Democrats aren't operating out of their home base in Madison, Republicans aren't on their strongest Milwaukee metro turf either. If Walker thinks he can chalk this race up to Madison saving the liberal day, he's got another thing coming.
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