Texas Ban On Same Sex-Marriage Ruled Unconstitutional

In the first of two major items of good news with respect to preventing right wing restrictions on individual liberty, a Federal judge has ruled that Texas’ law banning same-sex marriage is unconstitutional. U.S. District Judge Orlando Garcia cited recent U.S. Supreme Court rulings as having trumped Texas’ moves to ban gay marriage.

Today’s court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the U.S. Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our U.S. Constitution.

Laws against gay marriage have been struck down in seven states including Texas in the past sixty-five days. In each case there is a stay in effect and presumably the issue will be decided by the Supreme Court. A trial is also underway in Michigan to challenge the ban on same-sex marriage.

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Roberts Calls For Increased Funding For Courts, Criticizes Sequester Cuts

Supreme Court Chief Justice John Roberts has already upset many Republicans by voting to uphold the Affordable Care Act. He might lose a few more conservative friends by complaining that the sequester is responsible for cuts to the court system which pose a risk to public safety:

Supreme Court Chief Justice John Roberts used his year-end report for 2013 to call for more funding for federal courts and lambast sequestration’s effect on the judiciary.

In the New Year’s Eve missive, Roberts referenced the seasonally appropriate “A Christmas Carol” by Charles Dickens to guide a “look at what has made our federal court system work in the past, what we are doing in the present to preserve it in an era of fiscal constraint, and what the future holds if the judiciary does not receive the funding it needs.”

Roberts wrote that while the judiciary recognizes the need for frugality, its operating costs are only 0.2 percent of the federal budget and it has been making austerity moves for years, even before the sequester went into effect. Because courts cannot manage their caseload, however, Roberts said the effects of sequestration hit them harder.

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Effects Of Another Republican Appointee To The Supreme Court

Barack Obama has certainly not been perfect (even if his faults have been greatly exaggerated) and the prospect of Hillary Clinton as president leaves me quite unexcited about voting. Despite this, it is important to remember the alternative. One of the most significant differences between potential Democratic presidents and Republican presidents is the type of people they will appoint to the Supreme Court. Nothing is definite as Republican appointees have sometimes voted for liberal positions (most recently John Roberts supporting the Affordable Care Act), but with the increased ideological gap it is best to fear the worst.  While I would separate this from any pressure for Ruth Bader Ginsberg to retire before she is ready, Think Progress does have some warnings as to what will occur if she is replaced by a Republican president:

  • No More Marriage Equality: United States v. Windsor — the decision striking down the unconstitutional Defense of Marriage Act — was a 5-4 decision with Ginsburg in the majority. If Ginsburg is replaced by another conservative, DOMA could roar back to life. At the very least, the nation’s drive towards nationwide marriage equality could come to a screeching halt.
  • Criminalizing Sex: Although Lawrence v. Texas, which struck down Texas’ “sodomy” law, was a 6-3 decision, one of those six justices has since been replaced by the staunchly conservative Justice Samuel Alito. If another member of the Lawrence majority is replaced, it could lead to gay sex being outlawed entirely in several states. Lawrence‘s holding, however extends far beyond gay couples to prohibit laws criminalizing non-commercial sexual activity between consenting adults. Thus, if Lawrence falls, the government could find its way into every American’s bedroom.
  • The End of Abortion Rights: Roe v. Wade is already on life support. Indeed, Justice Anthony Kennedy, who is the so-called swing vote on abortion, hasn’t voted to strike a law restricting the right to choose in 21 years. Nevertheless, Kennedy provided the key fifth vote to retain “the essential holding of Roe v. Wade” in a case called Planned Parenthood v. Casey. If Ginsburg is replaced by a conservative, there will likely be only four votes willing to retain that holding.
  • Watering Down Minority Votes: Five justices voted in League of United Latin American Citizens v. Perry to strike part of a Texas redistricting map because it tried to protect an incumbent Republican congressman by reducing the impact of Latino voters. If Ginsburg is replaced by a conservative, these kinds of tactics could become common.
  • Executing Children & The Intellectually Disabled: There are almost certainly four votes on the Supreme Court to permit executions of children and the intellectually disabled. Ginsburg’s replacement could be the fifth.
  • Judges for Sale: Four justices joined a dissent arguing that there’s nothing wrong with a wealthy businessman spending $3 million to place a judge on a state supreme court — only to have that judge cast the key vote to overturn a $50 million verdict against the businessman’s company. Ginsburg’s replacement could places judges up for sale.
  • Millions Without Health Care: Finally, the decision that largely preserved the Affordable Care Act was a 5-4 decision, with four justices voting to repeal Obamacare in its entirety. If those four justices gain a fifth vote, it could not only strip millions of Americans of the health insurance that they will soon gain under this law, but it could toss the entire American health care system into chaos. Among other things, if the dissent’s plan to repeal the Affordable Care Act in its entirety were to actually happen, Medicare could lose its ability to pay claims until the agency that administers the program completed a lengthy rulemaking process that can take months.

And on top of all this, we could wind up with a president who believes in creationism, or who would choose a Supreme Court justice who would support the teaching of creationism in the schools.

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Federal Judge Rules NSA Surveillance Is Unconstitutional

Earlier this year, Edward Snowden released information on NSA surveillance, including the accumulation of information on American citizens which appears to be far in excess of either what is necessary or what is allowed under the Constitution. A federal judge agreed with this criticism today:

A Federal District Court judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, and he ordered the government to stop collecting data on two plaintiffs’ personal calls and destroy the records of their calling history.

In a 68-page ruling, Judge Richard J. Leon of the District of Columbia called the program’s technology “almost Orwellian” and suggested that James Madison, the author of the Constitution, would be “aghast” to learn that the government was encroaching on liberty in such a way.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

Leon wrote that old judicial decisions with regards to privacy rights need to be reevaluated in light of modern technology with previous cases (such as Smith vs. Maryland)  not necessarily remaining relevant:

[T]he almost-Orwellian technology that enables the Government to store and analyse the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person’s phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data in perpetuity, was at best, in 1979, the stuff of science fiction.

More on the decision at SCOTUS Blog.

This decision will most likely be appealed and ultimately be decided by the Supreme Court.

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Nuclear Option Weakens The Republican Tyranny Of The Minority

Harry Reid and Senate Democrats struck a blow against the tyranny of the minority today by exercising the nuclear option. Republican influence in the Senate is out of proportion to the number of people they actually represent due to the small Republican states having the same number of Senators as much larger states, which generally are Democratic. The Republicans have further extended this advantage by abusing the filibuster, often blocking appointments and legislation with a minority vote. In the entire history of the United States, 168 presidential appointments have been blocked. Eighty-two were under Obama and eighty-six were under all other presidents. While in the past the filibuster was more likely to be reserved for cases where the minority party had a real objection, Republicans are often using the filibuster to block qualified appointees just because they were appointed by Barack Obama. Republicans still do not accept Obama’s election and subsequent reelection

The impact of this is somewhat limited as it applies to executive branch appointments and most judges but does not apply to Supreme Court nominees or legislation. Republicans, who are outraged by this extension of majority rule, threaten to extend this should they take back control of the Senate so they can appoint more Scalias and Clarence Thomases to the Supreme Court.  (Why do Republicans hate America so much?) Rand Paul even called Reid a big bully.

In order for the Republicans to take advantage of this and carry out their threats, they will need a Republican president as well as control of the Senate. At least in the short run, this doesn’t look likely. Demographic changes have made it difficult for Republicans to take the White House unless the party changed dramatically. The Republicans might manage to take control of the Senate in 2014 if all the close races go their way. In 2016, a presidential election year which already is more favorable to Democrats than an off-year election, the Democrats have to defend ten seats while the Republicans will have to defend twenty-four. While red state Democratic Senators are among those running in 2014, several blue state Republicans will be on the ballot in 2016. I’m sure Harry Reid considered the likelihood of continued Democratic control of the Senate when deciding to go ahead with the nuclear option.

 

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Positive News In The Culture War on Equal Rights For Gay Couples and Marijuana Laws

There was some good news today which should upset quite a few social conservatives.

The Department of Treasury announced today that same-sex marriages will be treated as any other marriages nation-wide in response to the Supreme Court invalidating the Defense of Marriage Act:

The U.S. Department of the Treasury and the Internal Revenue Service (IRS) today ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.

The Department of Health and Human Services also revised rules in response to the Supreme Court decision:

Today, the Department of Health and Human Services (HHS) issued a memo clarifying that all beneficiaries in private Medicare plans have access to equal coverage when it comes to care in a nursing home where their spouse lives.  This is the first guidance issued by HHS in response to the recent Supreme Court ruling, which held section 3 of the Defense of Marriage Act unconstitutional.

“HHS is working swiftly to implement the Supreme Court’s decision and maximize federal recognition of same-sex spouses in HHS programs,” said HHS Secretary Kathleen Sebelius.  “Today’s announcement is the first of many steps that we will be taking over the coming months to clarify the effects of the Supreme Court’s decision and to ensure that gay and lesbian married couples are treated equally under the law.”

“Today, Medicare is ensuring that all beneficiaries will have equal access to coverage in a nursing home where their spouse lives, regardless of their sexual orientation,” said Centers for Medicare & Medicaid Services (CMS) Administrator Marilyn Tavenner.  “Prior to this, a beneficiary in a same-sex marriage enrolled in a Medicare Advantage plan did not have equal access to such coverage and, as a result, could have faced time away from his or her spouse or higher costs because of the way that marriage was defined for this purpose.”

Under current law, Medicare beneficiaries enrolled in a Medicare Advantage plan are entitled to care in, among certain other skilled nursing facilities (SNFs), the SNF where their spouse resides (assuming that they have met the conditions for SNF coverage in the first place, and the SNF has agreed to the payment amounts and other terms that apply to a plan network SNF).  Seniors with Medicare Advantage previously may have faced the choice of receiving coverage in a nursing home away from their same-sex spouse, or dis-enrolling from the Medicare Advantage plan which would have meant paying more out-of-pocket for care in the same nursing home as their same-sex spouse.

Today’s guidance clarifies that this guarantee of coverage applies equally to all married couples.  The guidance specifically clarifies that this guarantee of coverage applies equally to couples who are in a legally recognized same-sex marriage, regardless of where they live.

The Department of Justice announced it will not challenge state marijuana laws legalizing marijuana:

Today, the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of recent state ballot initiatives that legalize, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.

In a new memorandum outlining the policy, the Department makes clear that marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute. To this end, the Department identifies eight (8) enforcement areas that federal prosecutors should prioritize.  These are the same enforcement priorities that have traditionally driven the Department’s efforts in this area.

Outside of these enforcement priorities, however, the federal government has traditionally relied on state and local authorizes to address marijuana activity through enforcement of their own narcotics laws. This guidance continues that policy.

For states such as Colorado and Washington that have enacted laws to authorize the production, distribution and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance. These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time.  But if any of the stated harms do materialize—either despite a strict regulatory scheme or because of the lack of one—federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.

The ruling is mixed. Tom Angell, Chairman of Marijuana Majority, sent out this response by email earlier today:

“It’s nice to hear that the Obama administration doesn’t at this point intend to file a lawsuit to overturn the will of the voters in states that have opted to modernize their marijuana policies, but it remains to be seen how individual U.S. attorneys will interpret the new guidance and whether they will continue their efforts to close down marijuana businesses that are operating in accordance with state law.

“It’s significant that U.S. attorneys will no longer be able to use the size or profitability of a legal marijuana business to determine whether or not it should be a target for prosecution, but the guidelines seem to leave some leeway for the feds to continue making it hard for state-legal marijuana providers to do business.

“The administration’s statement that it doesn’t think busting individual users should be a priority remains meaningless, as it has never been a federal focus to go after people just for using small amounts of marijuana. The real question is whether the president will call off his federal agencies that have been on the attack and finally let legal marijuana businesses operate without harassment, or if he wants the DEA and prosecutors to keep intervening as they have throughout his presidency and thus continue forcing users to buy marijuana on the illegal market where much of the profits go to violent drug cartels and gangs.

“In all, today’s announcement represents a step in a right direction and a recognition by the administration that the politics of marijuana are rapidly shifting in favor of those who support legalization. However, my optimism is tempered by the fact that despite the Justice Department’s 2009 announcement that it shouldn’t be a priority to bust medical marijuana providers operating in accordance with state law, this administration went on to close down more state-legal marijuana businesses in one term than the Bush administration did in two terms.

“Polls from Pew and Gallup show that a supermajority of Americans wants the president to follow through on his 2008 pledges to respect marijuana laws, and that’s what advocates will continue pressing him to do.”

Also today, a federal appeals Court upheld California’s ban on “conversion therapy” which attempts to turn gay individuals straight.

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Republicans Sponsor Sensible Bill To Lower Health Care Costs And Improve Access To Care

I have always been on the look out for actions from the Republicans which I can support, but such posts have become increasingly difficult over the past several years as Republicans have moved to the far right. Today I did find an example of a Republican sponsored measure in Congress which, from at least what I’ve read so far, appears worthy of support. (I must add this qualifier as I’ve been burnt at times in initially supporting a Republican measure only to find upon review of the entire bill that it contained other unpalatable portions. Support for this certainly does not mean agreement with other positions of the Republicans involved).  Ted Poe (R-Texas) has introduced the Cutting Costly Codes Act of 2013, with Tom Coburn introducing the same act in the Senate. The key provision discussed in a report from The Hill is to eliminate the conversion from ICD-9 to ICD-10 diagnostic codes.

This is something which the American Medical Association has been pushing for, and which I have supported. The issue here isn’t which set of codes is better. Despite some opponents who ridicule the entire change based upon cherry-picking examples, there is no doubt that ICD-10 is a better system. The question is whether it is worth the high cost involved in making such a transition. In an era in which we are making so many compromises in health care for cost containment, sticking with an older coding system is an easy choice to make.

Besides greatly increasing costs for every health care facility, conversion from ICD-9 to ICD-10 is just one more government-mandated action which takes up more physician time. The Affordable Care Act (which has nothing to do with the changes in diagnostic codes) will result in large numbers of people seeking primary care doctors in 2014. I have already had to reduce the number of patients I see a day and limit accepting new patients due to the increase in time-consuming requirements, with even more on the horizon. We need to move in the opposite direction and reduce such demands on physician time as much as possible to enable us to see more patients a day so that more people will be able to find a primary care physician.

Regardless of the other positions of the sponsors (and assuming there isn’t anything deleterious hidden in the bill), this is a sensible measure to both prevent unnecessary increases in health care costs and improve access to care.

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Trends Opposing Social Conservative Views

Whether the country has become more or less liberal on economics depends upon both the time frame considered and definition of economic liberalism used. The country has moved towards the right in some ways on civil liberties issues since 9/11. On the other hand, while the pendulum sometimes moves briefly in the other direction, the country is becoming socially more liberal.

Stuart Rosenberg  points out the difficulties now faced by social conservatives, as their archaic views are rejected by increasing portions of the country:

Starting with TV shows like “All in the Family,” “Diff’rent Strokes” and “Maude,” progressing to the very funny “Will & Grace” and going right up to today’s most obvious example, “Glee,” television has pushed socially progressive themes. Socially progressive characters are enlightened and admirable, while traditionalists are unappealing, to say the least…

The public and TV networks’ reactions to two recent Supreme Court decisions, one invalidating Section 4 of the 1965 Voting Rights Act and the other invalidating the Defense of Marriage Act, were noteworthy.

Both decisions were 5-4, but only about the Voting Rights Act decision did I hear the high court widely described as “bitterly divided.”

In the days after the Voting Rights Act decision, you might have thought that the high court had taken away the right to vote from African-Americans. Journalists gave plenty of attention to voices opposing the decision and arguing that the ruling would overturn all the progress of civil rights since the 1960s.

The media’s coverage of the DOMA decision, on the other hand, was almost euphoric, geared overwhelmingly toward those celebrating the decision…

The type of coverage of the two decisions undoubtedly also reflects the fundamental values of most journalists, who are generally more liberal than the country as a whole. There appeared to be plenty of cheerleading after the two rulings on same-sex marriage, and not merely from the obvious voices on MSNBC.

But it wasn’t only surrounding the Supreme Court’s opinions on marriage that some of the recent media coverage seemed tilted.

On his final show hosting CNN’s “Reliable Sources” on Sunday, media critic Howard Kurtz commented on the media’s very sympathetic treatment of Texas state Sen. Wendy Davis, whose 11-hour filibuster at the end of a special session prevented the enactment of a bill limiting abortions and requiring facilities performing abortions to meet certain standards.

“If Wendy Davis had been conducting a lonely filibuster against abortion rights,” Kurtz asked, “would the media have celebrated her in quite the same way?” Kurtz didn’t offer an answer — because he didn’t have to. The answer certainly would have been “no.”

For social conservatives, the greatest problem may be the undermining of traditional religious authority and belief.

While Gallup showed only a slight annual increase last year in the percentage of people saying that they had no religious identification (up to 17.8 percent in 2012), the trend is clear.

“The rise in the religious ‘nones’ over time is one of the most significant trends in religious measurement in the United States. … The percentage who did not report [a religious] identity began to rise in the 1970s and has continued to increase in the years since,” wrote Gallup in a January 2013 report.

In the 2012 exit poll, President Barack Obama won 62 percent of voters who never attend religious services but only 39 percent of those who attended weekly. He carried 70 percent of those voters who said they had no religion, compared with only 42 percent of Protestants and 50 percent of Catholics…

Social conservatives probably see Obama, liberals on the Supreme Court and Democrats in Congress as their main adversaries. But they are wrong. The most important leaders of cultural liberalism may well be the members of the media and entertainment communities, and social conservatives simply have no strategy to deal with that.

While the country is becoming more liberal, I see the record of the Supreme Court as far more mixed, making some rulings which liberals are happy with but also taking moves to try to move the country to the right, such as with the Citizen’s United ruling. Their efforts to reduce the ability of minorities to vote may also be of value to Republicans. I wouldn’t underestimate the value of looking at popular culture as an indicator of which direction the country is heading in, but a conservative Supreme Court can leave us with a government which continues to be overly intrusive in the private lives of individuals.

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Building The Infrastructure For A Police State

The government has accumulated and is storing massive amounts of data on Americans but is keeping this information secure and promises not to use this to spy on individual Americans not connected to terrorism. What could possibly go wrong?

Yeah, obviously that is a sarcastic rhetorical question. One good answer to this question is found in an op-ed by Daniel Ellsberg, who knows a bit about whistle blowers:

Obviously, the United States is not now a police state. But given the extent of this invasion of people’s privacy, we do have the full electronic and legislative infrastructure of such a state. If, for instance, there was now a war that led to a large-scale anti-war movement – like the one we had against the war in Vietnam – or, more likely, if we suffered one more attack on the scale of 9/11, I fear for our democracy. These powers are extremely dangerous.

Unfortunately this is run under the title Edward Snowden: saving us from the United Stasi of America. Yet another example of hyperbole seen on this issue, like another example I gave here. Fortunately Ellsberg acknowledges that this is not a police state, and is warning about a potential threat as opposed to exaggerating about the current situation. I certainly don’t see any sign that anyone fears discussing this issue, as would be the case in a true police state. On the other hand, would anyone trust John McCain, who has never seen a war he didn’t like. to have this information about people who might protest whatever wars he got us into if elected? Would you trust Mitt Romney, who seems to be devoid of any principles? In a two party system, who knows what type of Republican might manage to win an election in the near future (and not all Democrats can be trusted either).

There are a number of answers I’m hearing which aren’t very good, ranging from paranoia to the opposite reaction of denying the problem. I have received an answer that “Bush did it.” Is George W. Bush the standard by what is right? Yes, as I pointed out last week, this is an ongoing problem, not a new issue, and not a question of whether you like Bush or Obama better. Look at the issue independent of political personalities. Besides, if you want to blame politicians, as Steve Benen pointed out you can also blame Congress:

With this in mind, Jonathan Bernstein asked a compelling question over the weekend and provided a persuasive answer: “If you don’t like the revelations this week about what the NSA has been up to regarding your phone and Internet data, whom should you blame?”

There is, to be sure, plenty of blame to go around. The NSA has pushed the limits; federal courts approved the surveillance programs; George W. Bush got this ball rolling; President Obama kept this ball rolling; and telecoms have clearly participated in the efforts.

“But save plenty of your blame — perhaps most of your blame — for Congress.

“Did you notice the word I used in each of the other cases? The key word: law. As far as we know, everything that happened here was fully within the law. So if something was allowed that shouldn’t have been allowed, the problem is, in the first place, the laws. And that means Congress.”

It’s worth pausing to note that there is some debate about the legality of the exposed surveillance programs. Based on what we know at this point, most of the legal analyses I’ve seen suggest the NSA’s actions were within the law, though we’re still dealing with an incomplete picture, and there are certainly some legal experts who question whether the NSA crossed legal lines…

In theory, Obama could have chosen a different path after taking office in 2009, but the historical pattern is clear: if Congress gives a war-time president vast powers related to national security, that president is going to use those powers. The wiser course of action would be the legislative branch acting to keep those powers in check — limiting how far a White House can go — but our contemporary Congress has chosen to do the opposite.

This is, by the way, a bipartisan phenomenon — lawmakers in both parties gave Bush expansive authority in this area, and lawmakers in both parties agreed to keep these powers in Obama’s hands. What’s more, they not only passed laws these measures into law, they chose not to do much in the way of oversight as the surveillance programs grew.

We cannot expect any president to voluntarily give up powers present upon taking office, but at least there have been favorable signs that Obama is starting to ask the right questions. Under normal circumstances we need Congress to do their job. Unfortunately many Democrats were afraid to do this under Bush, and the Republicans are preoccupied by matters which are more important to them, from restricting reproductive rights to voting to repeal Obamacare thirty-seven times.  We also need the courts to do more than rubber stamp requests. Even under the best of circumstances, we cannot count on government to reveal its sins. If not for whistle blowers, we would not know much of what we know about Viet Nam, mistreatment of prisoners at places such as Abu Ghraib, CIA rendition, and the use of drones.

I’m seeing far too many cases of liberals playing down this issue, seeing it as an attack on Obama, when most opposed these provisions of the Patriot Act under George Bush. I’m also seeing some making this about Glenn Greenwald (who says more revelations are coming). I agree that at times he has gone overboard in attacks on Obama, but this is about the facts he is reporting, not his personal views.  Meanwhile the right is divided between those want to attack Obama and big government, contradicting their previous support for big government under George Bush, and those who are such big proponents of an authoritarian surveillance state that they will even overlook the fact, just this one time, that Obama is involved.

Another poor response I’m seeing is a comparison to all the information we give up when we go shopping, or post on Facebook. There is absolutely no comparison to information which is given voluntarily and to a retail store as opposed to information being secretly obtained by a government. When Google was accused of possessing too much information they initiated action to notify users of the information they have and offer ways to opt out. This might not be completely satisfying, but it is far preferable to a government system where it is illegal to even discuss requests for information.

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Sandra Day O’Connor Finally Express Regret Over Her Vote on Bush v. Gore

The Bush years were a disgrace to the United States, including repeated violations of civil liberties, abuses of power, and incompetent governing. If those who defended the American system of democract against the abuses of the Bush years were to look back and choose one moment which was particularly upsetting, the two which would undoubtedly receive the most consideration would be going to war against Iraq based upon lies and the Supreme Court decision which placed Bush in power. Of course all the abuses of the Bush years were made possible by the Supreme Court’s decision in Bush v. Gore.

If the Supreme Court had respected the democratic system, or at least took a consistent view on states’ rights, the outcome isn’t entirely clear. The partial recount which Gore was seeking before the Supreme Court intervened would have still resulted in George Bush winning, but a full recount of Florida would have given the state to Gore. (There were additional problems in Florida such as voters intending to vote for Gore but mistakenly voting for Pat Buchanan due to the format of the ballot, but there was no conceivable remedy for this).  Regardless of what the outcome would have been, the Supreme Court was wrong to interfere with recounts in Florida.

Sandra Day O’Connor, who voted with the 5-4 majority to circumvent democracy, told that Chicago Tribune that the decision may have been wrong:

Retired U.S. Supreme Court Justice Sandra Day O’Connor hasn’t given much thought to which was the most important case she helped decide during her 25 years on the bench. But she has no doubt which was the most controversial.

It was Bush v. Gore, which ended the Florida recount and decided the 2000 presidential election.

Looking back, O’Connor said, she isn’t sure the high court should have taken the case.

“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk Friday with the Tribune editorial board. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”

The case, she said, “stirred up the public” and “gave the court a less-than-perfect reputation.”

“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

O’Connor, who was appointed by President Ronald Reagan in 1981, was the first woman to serve on the high court. Though she tended to side with the conservatives, O’Connor was known as the court’s swing vote. Her vote in the 5-4 Bush v. Gore decision effectively gave Republican George W. Bush a victory over his Democratic opponent, then-Vice President Al Gore.

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