For my friends in places other than San Diego, I am sad to say that I am writing again about the San Diego City Council District 4 Special Election. Sorry. I promise that I'll go back to writing about other topics soon - I have a few thoughts on Benghazi coming up - but with the election coming up, I thought I'd mention this article in the San Diego Union-Tribune. . . .yes, its owner does insist on people calling him Papa. . . .yes, its as creepy as it sounds. . . .and, yes, it does believe that Playboy naming its playmate of the year is "breaking news" - but that's besides the point. What is interesting is who's spending what.
In this race there are essentially four major players - Myrtle Cole, Dwayne Crenshaw (my friend), the San Diego Labor Council (known locally as "Labor"for short), and the Tea Party/Downtown Special Interests types. Cole and Dwayne are the candidates, and find themselves in the midst of what is essentially a proxy war between Labor and Downtown. As I wrote in an earlier response to an article in Voice of San Diego,* Labor is trying to buy the election, and Downtown is trying to fuck with Labor because it can.
The fundraising numbers that came out today bear out a lot of what I have said. Dwayne, who has a great deal of support in the District, doubled Cole's fundraising numbers. This is despite the fact that Cole has the explicit backing of Labor, and of the entire Democratic Party establishment, from the mayor on down.
On the independent expenditure side, the Tea Party/Downtown establishment types have spent $60,000, more or less, on the race. In the meanwhile, Labor has spent $200,000 so far. Labor HAS SPENT $200,000 SO FAR. In a voter universe of around 20,000 people. Against a guy who the local liberal alternative weekly, San Diego City Beat, deems to be the true progressive in the race. In other words, Labor has really fucked up here.
Let's take a look at what Labor had going for it going into this race shall we: (1) District 4 is, and has always been, a strong Democratic District; (2) With a few notable exceptions, the candidates were Democrats, and generally pro-Labor; (3) The two candidates in the run-off were definitely pro-Labor.
So, what if Labor had, after spending $70,000 to get Cole into the run-off, decided to back off the race, and let Cole and Crenshaw battle it out on their own? Their best case scenario would have been Cole winning, with their worst case scenario would be Dwayne winning - but since Labor backed off after the primary, he isn't pissed at Labor, and goes back to his natural constituency (progressive Democrats). This race should have been the definition of a win-win.
But of course, Labor didn't do that. Instead, it got rope-a-doped into believing that Downtown actually wanted Dwayne in office, and spent over $200,000. Much of that spending has been on negative mailers. And some of which (as I noted in a previous post) attack Dwayne receiving money as a result of what appears to be a meritorious discrimination lawsuit, equating the lawsuit with "taking money from the community," and mocking what was one of Dwayne's most painful personal experiences. Do you think that, post-election, Dwayne is going to be chummy with Labor? Do you think that the San Diego LGBT community, which has seen one of its leaders ravaged unfairly, are going to be as supportive of Labor in the upcoming years?
So here we are. Instead of having options, Labor is painted into a corner. It has to, HAS TO, spend big to destroy Dwayne. In the meantime, Labor is slowly poisoning its connections with the LGBT community. Oh, and because Labor has relatively big pockets, and don't shift their money around like most PAC's, Dwayne wouldn't be entirely crazy to sue for defamation, especially given the conservative bent of the local judiciary. This ramifications of this race could hang around Labor's neck for years.
Again, I can't stress enough how badly Labor has fucked up here. They should never have been in this position. EVER. And ultimately, that's the strangest part of this race. I know the guys at the Labor Council. I've worked with some of them back in my political days. Heck, one of the guys at the Labor Council was Dwayne's campaign manager not so long ago. Labor's head, Lorena Gonzalez, who's now running for the State Assembly, is a goddamn political superstar who should be Speaker of the Assembly any day now.** But this is just fucked up, and I have to think someone over at Labor has to wonder how they got here.
*Damn, I still need to give Voice of San Diego money.
**Lorena, if you're reading this, and I don't think you are, this is your floor. Anything less would be a disappointment.
Friday, May 10, 2013
Tuesday, April 30, 2013
Um Guys. . .Seriously. . .What Are You Thinking?
I guess all the hit pieces run by the Lincoln Club hit a nerve. The Labor Council sent out a hit piece on Dwayne Crenshaw in District 4 (see my last few post for the background), attacking Dwayne for his tenure at the Coalition of Neighborhood Councils (hereinafter CNC), most likely referencing this article by Voice of San Diego.*
So, let's go to the facts as we know them. Dwayne worked for the CNC as the Executive Director. When he started, the CNC had 1 part-time employee and an operating budget of less than $50,000. Under his leadership, the CNC employed 50 people full-time, and had an operating budget of over $1.5 million. After complaints by several members community regarding Dwayne's sexual orientation apparently, the CNC fired Dwayne, and he promptly sued the CNC for wrongful termination.** Thereafter, the parties settled, Dwayne went to law school without the aid of student loans, didn't work for around 3 years, and was able to loan his campaign $20,000. Oh, and CNC completely collapsed after Dwayne left.
In the hit piece, the Labor Council claims that Dwayne was fired for "mismanagement of funds." This is a lie. The CNC never stated any reason for Dwayne's firing whatsoever.*** The only explanation for Dwayne's firing comes from Dwayne himself, and he claimed he was fired for being gay. Oh, and he received an unspecified sum as a result of the lawsuit. It also claims that he "took money from the community," because he received money from the lawsuit, compensating him for lost wages as a result of being fired for being gay. Classy huh?
As with earlier efforts to equate generally bad politicking with homophobia, this particular hit piece is pretty tone-deaf, and maybe a bit homophobic itself. Was Dwayne Crenshaw supposed to accept that he was fired from the CNC because he was gay? Was he not supposed to fight discrimination? More importantly, is the Labor Council really attacking Dwayne because he availed himself of the legal process, and well, won? I guess the message the Labor Council wants to send to members of the community is that racism and homophobia are no big deal, and that anyone who stands up for himself or herself is a traitor to the community. Quite frankly, that's a pretty shitty thing to say, and violates every principle the Labor Council is supposed to stand for.
Here's the thing - I know these guys. The Labor Council is lead by good people, who care about their community. But this hit piece is completely ridiculous. Again, not only is it lying about the facts, but it tells every gay kid that standing up for himself makes him a traitor to his community. Seriously, guys, what the fuck?
* I seriously need to give those guys some money.
**A quick lawyerly note - there is no cause of action for wrongful termination in the State of California, as California is a right to work state. There are causes of action for discrimination in termination, which is a nearly impossible claim to prove. To win, Dwayne would have had to prove the motivation of the CNC was to fire him for being gay. But I digress.
***Quick note - on Twitter, Lorena Gonzalez and Evan McLaughlin (who are both on leave with the Labor Council), defended the piece, stating that there were allegations that Dwayne had misappropriated funds, and had been sued for the misappropriation. This is also false. The CNC countersued Dwayne when he filed his discrimination suit, but never alleged misappropriation of funds. If anyone at the CNC believed that Dwayne stole from the CNC, not alleging misappropriation of funds in a cross-complaint (which is constitutionally protected from defamation), is bad lawyering unless the CNC didn't believe Dwayne had misappropriated any funds. The only thing Lorena could point to was a case against the CNC itself regarding a school lunch program, which the CNC successfully defended. Even there, the issue wasn't so much misappropriation of funds, but rather, initially poor management of the program, which was corrected in the Court's view.
So, let's go to the facts as we know them. Dwayne worked for the CNC as the Executive Director. When he started, the CNC had 1 part-time employee and an operating budget of less than $50,000. Under his leadership, the CNC employed 50 people full-time, and had an operating budget of over $1.5 million. After complaints by several members community regarding Dwayne's sexual orientation apparently, the CNC fired Dwayne, and he promptly sued the CNC for wrongful termination.** Thereafter, the parties settled, Dwayne went to law school without the aid of student loans, didn't work for around 3 years, and was able to loan his campaign $20,000. Oh, and CNC completely collapsed after Dwayne left.
In the hit piece, the Labor Council claims that Dwayne was fired for "mismanagement of funds." This is a lie. The CNC never stated any reason for Dwayne's firing whatsoever.*** The only explanation for Dwayne's firing comes from Dwayne himself, and he claimed he was fired for being gay. Oh, and he received an unspecified sum as a result of the lawsuit. It also claims that he "took money from the community," because he received money from the lawsuit, compensating him for lost wages as a result of being fired for being gay. Classy huh?
As with earlier efforts to equate generally bad politicking with homophobia, this particular hit piece is pretty tone-deaf, and maybe a bit homophobic itself. Was Dwayne Crenshaw supposed to accept that he was fired from the CNC because he was gay? Was he not supposed to fight discrimination? More importantly, is the Labor Council really attacking Dwayne because he availed himself of the legal process, and well, won? I guess the message the Labor Council wants to send to members of the community is that racism and homophobia are no big deal, and that anyone who stands up for himself or herself is a traitor to the community. Quite frankly, that's a pretty shitty thing to say, and violates every principle the Labor Council is supposed to stand for.
Here's the thing - I know these guys. The Labor Council is lead by good people, who care about their community. But this hit piece is completely ridiculous. Again, not only is it lying about the facts, but it tells every gay kid that standing up for himself makes him a traitor to his community. Seriously, guys, what the fuck?
* I seriously need to give those guys some money.
**A quick lawyerly note - there is no cause of action for wrongful termination in the State of California, as California is a right to work state. There are causes of action for discrimination in termination, which is a nearly impossible claim to prove. To win, Dwayne would have had to prove the motivation of the CNC was to fire him for being gay. But I digress.
***Quick note - on Twitter, Lorena Gonzalez and Evan McLaughlin (who are both on leave with the Labor Council), defended the piece, stating that there were allegations that Dwayne had misappropriated funds, and had been sued for the misappropriation. This is also false. The CNC countersued Dwayne when he filed his discrimination suit, but never alleged misappropriation of funds. If anyone at the CNC believed that Dwayne stole from the CNC, not alleging misappropriation of funds in a cross-complaint (which is constitutionally protected from defamation), is bad lawyering unless the CNC didn't believe Dwayne had misappropriated any funds. The only thing Lorena could point to was a case against the CNC itself regarding a school lunch program, which the CNC successfully defended. Even there, the issue wasn't so much misappropriation of funds, but rather, initially poor management of the program, which was corrected in the Court's view.
Friday, April 26, 2013
Is District 4 Bought and Paid For? (Local San Diego Post)
A recent article in San Diego's excellent online newspaper Voice of San Diego* recently had an article quoting local consultant Jennifer Tierney as saying that whoever wins in the San Diego City Council in District 4 will be bought. Forgive me, but I had a few thoughts.
I think its half right. If you recall from my earlier post about the background of this race, there are two candidates in the race - Dwayne Crenshaw and Myrtle Cole. Dwayne Crenshaw, again, is a good friend of mine. Myrtle Cole is a former police officer for the local community college board, former campaign manager for Tony Young (the outgoing City Councilman for the area), and works for one of the labor unions. Both Dwayne and Cole are Democrats with a long history in the Democratic Party. And both are being backed by large independent expenditures - Cole is backed by the San Diego Labor Council (our local AFL-CIO affliate), and Dwayne is being backed by Republican groups such as the Lincoln Club.
But here's the thing - Dwayne isn't a Republican. He's never been a Republican, and as an African American gay man, he probably never will be. Not only that, but he is the Executive Director (on leave) of San Diego Pride, and works with the Innocence Project to get the wrongfully convicted out of prison. When he ran for Assembly in 2000, NARAL and Planned Parenthood overwhelmingly endorsed him, and sent volunteers to work on the campaign. This is not someone who is exactly close with the ultra conservative Lincoln Club. And noticeably he has not accepted any campaign dollars from any conservative or Republican group.
Cole, on the other hand, is completely beholden to the Labor Council. As she admits in the article, it was the Labor Council's spending (more than all the other candidates in the race combined) that pulled her into the run-off. Her donations come as a result of the Labor Council's backing. The Democratic endorsements come as a result of the Labor Council's backing. In the meantime, she has little support by the intelligentsia of the District. So much so that five of the seven candidates in the primary have endorsed Dwayne.** She could never even think of going against the Labor Council's wishes, even if those wishes are contrary to the needs of her folks in District 4. Without Labor's support, her base of power completely drops out, and everyone knows this.
Again, the Lincoln Club isn't getting this with Dwayne at all. He doesn't support their issues, or their philosophies of governance. So why is the Lincoln Club supporting Dwayne? For one reason, and one reason only - to fuck with Labor. They can see that Cole is a weaker candidate, and are moving in for the kill. Thus, the District 4 seat is half bought.
*I really need to buy a membership and support of Voice of San Diego. If you live in San Diego, you should too.
**As Liam Dillon pointed out in a Tweet, of the seven primary candidates besides Dwayne and Cole, five have endorsed Dwayne, one has endorsed Cole, and one has not made an endorsement. My apologies for the error, and like I said, those guys at Voice of San Diego are really thorough. They deserve your money.
I think its half right. If you recall from my earlier post about the background of this race, there are two candidates in the race - Dwayne Crenshaw and Myrtle Cole. Dwayne Crenshaw, again, is a good friend of mine. Myrtle Cole is a former police officer for the local community college board, former campaign manager for Tony Young (the outgoing City Councilman for the area), and works for one of the labor unions. Both Dwayne and Cole are Democrats with a long history in the Democratic Party. And both are being backed by large independent expenditures - Cole is backed by the San Diego Labor Council (our local AFL-CIO affliate), and Dwayne is being backed by Republican groups such as the Lincoln Club.
But here's the thing - Dwayne isn't a Republican. He's never been a Republican, and as an African American gay man, he probably never will be. Not only that, but he is the Executive Director (on leave) of San Diego Pride, and works with the Innocence Project to get the wrongfully convicted out of prison. When he ran for Assembly in 2000, NARAL and Planned Parenthood overwhelmingly endorsed him, and sent volunteers to work on the campaign. This is not someone who is exactly close with the ultra conservative Lincoln Club. And noticeably he has not accepted any campaign dollars from any conservative or Republican group.
Cole, on the other hand, is completely beholden to the Labor Council. As she admits in the article, it was the Labor Council's spending (more than all the other candidates in the race combined) that pulled her into the run-off. Her donations come as a result of the Labor Council's backing. The Democratic endorsements come as a result of the Labor Council's backing. In the meantime, she has little support by the intelligentsia of the District. So much so that five of the seven candidates in the primary have endorsed Dwayne.** She could never even think of going against the Labor Council's wishes, even if those wishes are contrary to the needs of her folks in District 4. Without Labor's support, her base of power completely drops out, and everyone knows this.
Again, the Lincoln Club isn't getting this with Dwayne at all. He doesn't support their issues, or their philosophies of governance. So why is the Lincoln Club supporting Dwayne? For one reason, and one reason only - to fuck with Labor. They can see that Cole is a weaker candidate, and are moving in for the kill. Thus, the District 4 seat is half bought.
*I really need to buy a membership and support of Voice of San Diego. If you live in San Diego, you should too.
**As Liam Dillon pointed out in a Tweet, of the seven primary candidates besides Dwayne and Cole, five have endorsed Dwayne, one has endorsed Cole, and one has not made an endorsement. My apologies for the error, and like I said, those guys at Voice of San Diego are really thorough. They deserve your money.
Wednesday, April 24, 2013
These Two Things Are Not the Same - Post on District 4
For those of you who follow me on Twitter (the feed is to the left, by the way), you may have noticed a few tweets last night with the hashtag #sameashomophobiarightevanandlucas. But you may not have understood the context of the tweets. So allow me to explain:
After the 2012 general election, San Diego City Councilman Tony Young resigned from office to pursue other interests. And, as you might expect, there was a special election to replace Mr. Young. The primary has taken place, and the general election is coming up.
There were a large number of participants in the primary election, but there are only two you need to worry about for this post - Dwayne Crenshaw and Myrtle Cole. Dwayne is a good friend of mine, and I have supported him from the get-go, including donating to his campaign. I also believe that Dwayne would be a great City Councilman - he has a record of economic development in this City Council District as a private citizen that most politicians would be proud of. Myrtle Cole, I do not know, but she is backed by the Labor Council, who, in turn, secured her endorsement from the Democratic Party. Dwayne is also a Democrat, by the way.
The other thing to know is that this particular race takes place in San Diego's historically African-American District. Ironically, African Americans aren't the largest ethnic group in this area - Latinos are more numerous - but it has historically been the seat of African American politics in San Diego. Both Dwayne and Myrtle are African Americans.
It is also important to know that Dwayne Crenshaw is gay, and his coming out process was brutal. When running for the same City Council seat in 2004, he was outed publicly and was subject to vicious and homophobic attacks. He left politics, and worked for a nonprofit called the Coalition of Neighborhood Councils (CDC), which employed 1 part-time employee when he arrived, and employed over 50 full-time employees when he was fired for being gay (allegedly). The whole process left Dwayne bruised and battered. Oh, and the CDC collapsed when Dwayne left.
Anyway, back to the story - a few days before the Primary, the San Diego Voice & Viewpoint, the biggest and most influential African American newspaper in San Diego, who's editor regularly appears on radio and other local media outlets, endorsed a third candidate in this election. That's not very important. What is important is that the newspaper specifically rejected Dwayne Crenshaw because he is gay. Not because of his record, but because he is gay.
Shortly thereafter, there were calls from various progressive groups to condemn the Voice & Viewpoint for this editorial. 48 hours later, Myrtle Cole did so. Now, keep in mind, she wasn't endorsed by the Voice & Viewpoint either. She had no dog in the fight, and would have won brownie points by denouncing the rampant homophobia right away. But instead she waited. Mostly, I think she waited because she didn't think about it. Anyway, she got on board, and finally denounced the Voice & Viewpoint.
Now, moving forward to yesterday, there have apparently been some hit pieces distributed in the District by San Diego's Lincoln Club - basically the well-oiled, well-financed, Republican/conservative group here in San Diego. From what I've seen, these hit pieces are a bit ridiculous - alleging Cole just moved into the District from Arizona (she is from Arizona, but moved to San Diego years ago; she moved into the District recently), that she was fined $10,000 for ethics violations (she was not, a campaign she worked for was, but after she left), and there are a few other iffy claims in the mailer.
Thus began a twitter war - two members of the Labor Council's political arm - Evan McLaughlin and Lucas O'Connor both tweeting that if given the whole blow-up over the Voice & Viewpoint, surely Dwayne would denounce the Lincoln Club's slimy hit pieces against Cole.
And this is where I got pissed off. There is simply no equivalence between what the Voice & Viewpoint did and what the Lincoln Club has done. Yes, the Lincoln Club are slimy fucks. Yes, they are lying in a hit piece against Cole. This is politics, and sadly, it happens all the time. That's why politicians have bad names, and why most people don't read mail hit pieces - they throw them out almost immediately. What the Voice & Viewpoint did is different.
The Voice & Viewpoint did not send out obvious advertising, it wrote an editorial on the front page of the paper. As I said earlier, John Warren is a public figure - and in some circles, he is the voice of San Diego's African American community. So, for John Warren to reject a candidate because he is gay is a statement that San Diego's African American community rejects everyone in the LGBTQ community. Because a "confessedly homosexual lifestyle" is wrong in his eyes.
Think about a young teenager in that community hearing that message of hate. We know what the effects are - Dan Savage started a YouTube channel called "It Gets Better" specifically to convince LGBTQ teens to not kill themselves for being gay. We have seen gay men targeted for beatings because they are gay. The Stonewall Patrol in Hillcrest was formed specifically to prevent such attacks on gay men that were occurring on a way too-regular basis. The editorial didn't just attack Dwayne for being gay, it attacked the entire LGBTQ community. That's why it had to be denounced immediately.
By contrast, a hit piece filled with lies, against a single person, written by a Republican Party group in a predominately Democratic District is hardly equivalent. Is the Lincoln Club filled with slimy fucks who will lie at the drop of a hat? Of course. But no one is going to kill themselves over the message. When someone tries to draw a parallel to what happened with the Voice & Viewpoint, I get pissed off. And hence, the twitter war.
After the 2012 general election, San Diego City Councilman Tony Young resigned from office to pursue other interests. And, as you might expect, there was a special election to replace Mr. Young. The primary has taken place, and the general election is coming up.
There were a large number of participants in the primary election, but there are only two you need to worry about for this post - Dwayne Crenshaw and Myrtle Cole. Dwayne is a good friend of mine, and I have supported him from the get-go, including donating to his campaign. I also believe that Dwayne would be a great City Councilman - he has a record of economic development in this City Council District as a private citizen that most politicians would be proud of. Myrtle Cole, I do not know, but she is backed by the Labor Council, who, in turn, secured her endorsement from the Democratic Party. Dwayne is also a Democrat, by the way.
The other thing to know is that this particular race takes place in San Diego's historically African-American District. Ironically, African Americans aren't the largest ethnic group in this area - Latinos are more numerous - but it has historically been the seat of African American politics in San Diego. Both Dwayne and Myrtle are African Americans.
It is also important to know that Dwayne Crenshaw is gay, and his coming out process was brutal. When running for the same City Council seat in 2004, he was outed publicly and was subject to vicious and homophobic attacks. He left politics, and worked for a nonprofit called the Coalition of Neighborhood Councils (CDC), which employed 1 part-time employee when he arrived, and employed over 50 full-time employees when he was fired for being gay (allegedly). The whole process left Dwayne bruised and battered. Oh, and the CDC collapsed when Dwayne left.
Anyway, back to the story - a few days before the Primary, the San Diego Voice & Viewpoint, the biggest and most influential African American newspaper in San Diego, who's editor regularly appears on radio and other local media outlets, endorsed a third candidate in this election. That's not very important. What is important is that the newspaper specifically rejected Dwayne Crenshaw because he is gay. Not because of his record, but because he is gay.
Shortly thereafter, there were calls from various progressive groups to condemn the Voice & Viewpoint for this editorial. 48 hours later, Myrtle Cole did so. Now, keep in mind, she wasn't endorsed by the Voice & Viewpoint either. She had no dog in the fight, and would have won brownie points by denouncing the rampant homophobia right away. But instead she waited. Mostly, I think she waited because she didn't think about it. Anyway, she got on board, and finally denounced the Voice & Viewpoint.
Now, moving forward to yesterday, there have apparently been some hit pieces distributed in the District by San Diego's Lincoln Club - basically the well-oiled, well-financed, Republican/conservative group here in San Diego. From what I've seen, these hit pieces are a bit ridiculous - alleging Cole just moved into the District from Arizona (she is from Arizona, but moved to San Diego years ago; she moved into the District recently), that she was fined $10,000 for ethics violations (she was not, a campaign she worked for was, but after she left), and there are a few other iffy claims in the mailer.
Thus began a twitter war - two members of the Labor Council's political arm - Evan McLaughlin and Lucas O'Connor both tweeting that if given the whole blow-up over the Voice & Viewpoint, surely Dwayne would denounce the Lincoln Club's slimy hit pieces against Cole.
And this is where I got pissed off. There is simply no equivalence between what the Voice & Viewpoint did and what the Lincoln Club has done. Yes, the Lincoln Club are slimy fucks. Yes, they are lying in a hit piece against Cole. This is politics, and sadly, it happens all the time. That's why politicians have bad names, and why most people don't read mail hit pieces - they throw them out almost immediately. What the Voice & Viewpoint did is different.
The Voice & Viewpoint did not send out obvious advertising, it wrote an editorial on the front page of the paper. As I said earlier, John Warren is a public figure - and in some circles, he is the voice of San Diego's African American community. So, for John Warren to reject a candidate because he is gay is a statement that San Diego's African American community rejects everyone in the LGBTQ community. Because a "confessedly homosexual lifestyle" is wrong in his eyes.
Think about a young teenager in that community hearing that message of hate. We know what the effects are - Dan Savage started a YouTube channel called "It Gets Better" specifically to convince LGBTQ teens to not kill themselves for being gay. We have seen gay men targeted for beatings because they are gay. The Stonewall Patrol in Hillcrest was formed specifically to prevent such attacks on gay men that were occurring on a way too-regular basis. The editorial didn't just attack Dwayne for being gay, it attacked the entire LGBTQ community. That's why it had to be denounced immediately.
By contrast, a hit piece filled with lies, against a single person, written by a Republican Party group in a predominately Democratic District is hardly equivalent. Is the Lincoln Club filled with slimy fucks who will lie at the drop of a hat? Of course. But no one is going to kill themselves over the message. When someone tries to draw a parallel to what happened with the Voice & Viewpoint, I get pissed off. And hence, the twitter war.
Monday, April 22, 2013
Mirandizing the Boston Bomber?
Like a lot of people, I sat transfixed watching events unfold in Boston last week. Of course, and this says a lot about modern media, most of my information came from Twitter, and not from the usual news sources. Their failures - particularly the slanderous allegations in the New York Post - will be the subject of future litigation and handwringing, I am sure.
That said, I would like to make a short comment about the way the Obama Administration is dealing with the surviving Boston bombing suspect (who's name I won't mention because it gives him more press than he deserves and his name is hard to spell). I completely appreciate the fact that the Obama Administration is treating the suspect as a criminal, and not as an enemy combatant. Doing the latter, as opposed to the former, would only serve to elevate the suspect beyond the level of criminality that he does not deserve (allegedly).
The decision to not mirandize the suspect - to inform him of his right to remain silent, and his right to an attorney - is probably a poor decision, but not for the constitutional reasons most people set forth.
Remember, that a miranda warning deals only with the right to not make incriminating statements to be used against the suspect. From what I've gathered, there is a mountain of evidence against the suspect, including when he allegedly told a carjacking victim that he had performed the Boston bombings (that could have been his brother, but since he was in the car, I don't think it matters). The explosives, and bullets the suspect and his brother carried on him, along with the video evidence, all indicate guilt. In other words, the Feds don't need the suspect to confess - the case is pretty strong as is. And so, a warning to not make incriminating statements (and the withholding of any confession), is probably useless in this case.
Instead the Feds are interrogating the suspect under the "public safety" exception to Miranda, which I think is dumb for one reason only - a lawyer would help everyone involved. Right now, this 19 year old kid is being interrogated without anyone advising him. If he truly committed the crimes alleged (and that seems pretty clear that he did), and he performed these crimes at the behest of his older brother, then he's not the sharpest tool in the box. An attorney, knowing that his client is screwed (and this kid is either going to death row, or SuperMax prison for life), will try to cut a deal. He'll ask his client about other terrorist groups he knows about, what other crimes, and use that information to try to cut some kind of deal for his client. Here, I'd suspect the deal would take the death penalty off the table, maybe even a plea deal to avoid trial.
Left to his own devices, the suspect may do something stupid - like not divulge anything. He might think that his life is over, and that he might as well die a matyr. The older brother probably would have done just that. But I think this kid isn't at all like his brother. I think that the option of living may be tempting - and an attorney may help him realize that. In other words, this is an instance where the presence of an attorney helps everyone.
That said, I would like to make a short comment about the way the Obama Administration is dealing with the surviving Boston bombing suspect (who's name I won't mention because it gives him more press than he deserves and his name is hard to spell). I completely appreciate the fact that the Obama Administration is treating the suspect as a criminal, and not as an enemy combatant. Doing the latter, as opposed to the former, would only serve to elevate the suspect beyond the level of criminality that he does not deserve (allegedly).
The decision to not mirandize the suspect - to inform him of his right to remain silent, and his right to an attorney - is probably a poor decision, but not for the constitutional reasons most people set forth.
Remember, that a miranda warning deals only with the right to not make incriminating statements to be used against the suspect. From what I've gathered, there is a mountain of evidence against the suspect, including when he allegedly told a carjacking victim that he had performed the Boston bombings (that could have been his brother, but since he was in the car, I don't think it matters). The explosives, and bullets the suspect and his brother carried on him, along with the video evidence, all indicate guilt. In other words, the Feds don't need the suspect to confess - the case is pretty strong as is. And so, a warning to not make incriminating statements (and the withholding of any confession), is probably useless in this case.
Instead the Feds are interrogating the suspect under the "public safety" exception to Miranda, which I think is dumb for one reason only - a lawyer would help everyone involved. Right now, this 19 year old kid is being interrogated without anyone advising him. If he truly committed the crimes alleged (and that seems pretty clear that he did), and he performed these crimes at the behest of his older brother, then he's not the sharpest tool in the box. An attorney, knowing that his client is screwed (and this kid is either going to death row, or SuperMax prison for life), will try to cut a deal. He'll ask his client about other terrorist groups he knows about, what other crimes, and use that information to try to cut some kind of deal for his client. Here, I'd suspect the deal would take the death penalty off the table, maybe even a plea deal to avoid trial.
Left to his own devices, the suspect may do something stupid - like not divulge anything. He might think that his life is over, and that he might as well die a matyr. The older brother probably would have done just that. But I think this kid isn't at all like his brother. I think that the option of living may be tempting - and an attorney may help him realize that. In other words, this is an instance where the presence of an attorney helps everyone.
Tuesday, March 26, 2013
Thoughts on the Prop. 8 Case (Same Sex Marriage)
Like a fair number of progressive lawyers, I've been following the Prop. 8 case for quite some time. I read Judge Walker's opinion at the trial court level, read the opinion in the 9th Circuit, and now have read the transcript of today's hearing in the Supreme Court. So, as an attorney, specifically a trial attorney, I'd like to share the following thought:
The proponents of Proposition 8 totally fucked up their case. I don't mean the attorney for the proponents fucked up today, but the proponents themselves fucked up their case completely. And much to everyone's chagrin, we're going to have to do this all over again.
Before I get too deep into the waters, here is some background: in 2008ish the California Supreme Court held that California's same-sex marriage ban was unconstitutional under the California Constitution because it violated California's equal protection clause and the right of privacy clause. The Court decided this based upon the fact that California had more or less granted all the rights to the same-sex couples as straight couples except for marriage, and thus, there is no rational basis to not allow gays to marry (more on this analysis later). Shortly thereafter, the voters approved Prop. 8, which amended that California Constitution to specifically prohibit same-sex marriage. While there was some back and forth about the proposition's legality, ultimately, the proposition was upheld.
Meanwhile, Theodore Olsen and David Boies, who represented both sides of the Bush v. Gore case (and who are at the absolute top of the legal profession), decided they were going to challenge Prop. 8 in Federal Court. This was viewed as absolutely crazy because the Supreme Court is viewed as being very conservative. But they did it anyway, and lucked out in getting Judge Vaughn Walker. Not because Walker is gay (though he is), but because Walker was absolutely diligent. Rather than issue decisions on a summary judgment, or by pure motion practice (lawyers filing briefs with the Court), he held a trial. A full, 12-day trial with witnesses, etc.
And that trial was the beginning of the problems for the proponents of Prop. 8. Initially, Prop. 8 proponents had 8 witnesses set to testify, and then six of them chickened out. The two who did testify was a guy with an engineer's degree testifying about sociological impacts of same-sex marriage, and a political science professor who testified that gays had some political power in California. That was it. Of all the evidence the Proponents could have put before the Court, they selected two guys who Judge Walker either deemed untrustworthy or irrelevant.
Thus, we have fuck-up number 1 - they selected witnesses who were completely incompetent on the issue. This is a key point because in the record before the Court is that the California ban on same-sex marriage has no merit, Judge Walker ruled that there was no rational basis for the ban. The 14th Amendment guarantees equal protection under the law, and so, anytime the law discriminates against a class of people, the state has a duty to prove that the law itself has some sort of rational basis beyond discrimination. Again, here, there was none evidence of a rational basis. The Proponents appealed.
The 9th Circuit caught onto this fact, and noted that same sex couples in California are allowed to enter into domestic partnerships, allowed to adopt children, are protected from discrimination by private individuals and by the state. So, what's in a label for California?
But here's where fuck-up no. 2 comes into play - the Proponents appealed the decision on their own behalf. Meanwhile, the State of California saw the decision of Judge Walker and decided they were cool with it, and refused to appeal. This is key because under Federal law, specifically Article III of the Constitution, requires that participants in Federal Court have to have standing - that is, have a real stake in the litigation. Random guy may be pissed about same-sex marriage, but ultimately, he's not affected by it. Sure enough, the very first question out the gate at the Supreme Court from Chief Justice Roberts was all about standing. Oops.
Now this is a fuck-up because private entities CAN challenge decisions like Judge Walker's decision overturning Prop. 8. Its just that those entities have to be organizations who's organization statement directly opposes same-sex marriage. Under the Supreme Court's case of Haven's Realty v. Coleman, Fair Housing organizations have standing to bring lawsuits because acts of housing discrimination violate the organization's purpose (to end housing discrimination). Thus, if one of the MANY organizations who oppose same-sex marriage (such as NOM) were the petitioners to the Supreme Court, there would be clear standing.
So, there is no good evidence in California that the same-sex marriage ban has any rational basis (other than gays are icky), and the wrong people are challenging the Court's ruling. Double oops.
At the same time, it couldn't happen to a nicer bunch of homophobes. After all, these are people who want to prohibit same-sex marriage. There really isn't a rational basis for any sort of ban beyond our own homophobia.
As far as today's argument went, I thought Olsen did a great job at the argument today, but I have one quibble - when he was asked by Justice Scalia when a ban on same-sex marriage was unconstitutional, he asked rhetorically, "When did the ban on interracial marriage become unconstitutional?" Which is a good rhetorical device, but it didn't drive home the point - same-sex marriage bans have been unconstitutional since the 14th Amendment was adopted, BUT, we only figured this out recently. Prior to that time, we, judiciary included, were blinded by our own homophobia. Just like a ban on interracial marriage should have always been deemed unconstitutional, but it was upheld by racist jurists. That should've been Olsen's point.
And here is where I sound a bit odd - like Scalia, I think of the Constitution as a "dead" document. Meaning that once the words are written on the page, they stay there. But, and this is where I differ, our interpretation of the Constitution changes based on the evidence presented to us. Thus, the First Amendment applies to blogs like this one, even though the Framers could never have imagined the internet. But I'm digressing. . .
I think that the Supreme Court is going to punt on this issue. Whether its holding that the Petitioners lack standing, or finding narrow grounds for upholding the 9th Circuit, the Supreme Court isn't going to jump into the fire. This is because Justice Kennedy isn't ready to pull the trigger, and Chief Justice Roberts doesn't want the Supreme Court to gain any more notoriety. Upholding a ban on same-sex marriage (and thus invalidating a finding of fact), or supporting same-sex marriage nationwide may be too much for the Court.
That said, the Olsen-Boies strategy of bringing a lawsuit under a state law, then trying the issue in open Court and obliterating the rationale of the anti-gay proponents of such bans is very, very good. And it will probably continue on for quite some time. If anything, Olsen and Boies screwed up by choosing California as the test run, and not Alabama (or Kansas, etc). Had they tried this case in Kansas, the Supreme Court's rationale would necessarily have to be broader than this one. But that's another case.
The proponents of Proposition 8 totally fucked up their case. I don't mean the attorney for the proponents fucked up today, but the proponents themselves fucked up their case completely. And much to everyone's chagrin, we're going to have to do this all over again.
Before I get too deep into the waters, here is some background: in 2008ish the California Supreme Court held that California's same-sex marriage ban was unconstitutional under the California Constitution because it violated California's equal protection clause and the right of privacy clause. The Court decided this based upon the fact that California had more or less granted all the rights to the same-sex couples as straight couples except for marriage, and thus, there is no rational basis to not allow gays to marry (more on this analysis later). Shortly thereafter, the voters approved Prop. 8, which amended that California Constitution to specifically prohibit same-sex marriage. While there was some back and forth about the proposition's legality, ultimately, the proposition was upheld.
Meanwhile, Theodore Olsen and David Boies, who represented both sides of the Bush v. Gore case (and who are at the absolute top of the legal profession), decided they were going to challenge Prop. 8 in Federal Court. This was viewed as absolutely crazy because the Supreme Court is viewed as being very conservative. But they did it anyway, and lucked out in getting Judge Vaughn Walker. Not because Walker is gay (though he is), but because Walker was absolutely diligent. Rather than issue decisions on a summary judgment, or by pure motion practice (lawyers filing briefs with the Court), he held a trial. A full, 12-day trial with witnesses, etc.
And that trial was the beginning of the problems for the proponents of Prop. 8. Initially, Prop. 8 proponents had 8 witnesses set to testify, and then six of them chickened out. The two who did testify was a guy with an engineer's degree testifying about sociological impacts of same-sex marriage, and a political science professor who testified that gays had some political power in California. That was it. Of all the evidence the Proponents could have put before the Court, they selected two guys who Judge Walker either deemed untrustworthy or irrelevant.
Thus, we have fuck-up number 1 - they selected witnesses who were completely incompetent on the issue. This is a key point because in the record before the Court is that the California ban on same-sex marriage has no merit, Judge Walker ruled that there was no rational basis for the ban. The 14th Amendment guarantees equal protection under the law, and so, anytime the law discriminates against a class of people, the state has a duty to prove that the law itself has some sort of rational basis beyond discrimination. Again, here, there was none evidence of a rational basis. The Proponents appealed.
The 9th Circuit caught onto this fact, and noted that same sex couples in California are allowed to enter into domestic partnerships, allowed to adopt children, are protected from discrimination by private individuals and by the state. So, what's in a label for California?
But here's where fuck-up no. 2 comes into play - the Proponents appealed the decision on their own behalf. Meanwhile, the State of California saw the decision of Judge Walker and decided they were cool with it, and refused to appeal. This is key because under Federal law, specifically Article III of the Constitution, requires that participants in Federal Court have to have standing - that is, have a real stake in the litigation. Random guy may be pissed about same-sex marriage, but ultimately, he's not affected by it. Sure enough, the very first question out the gate at the Supreme Court from Chief Justice Roberts was all about standing. Oops.
Now this is a fuck-up because private entities CAN challenge decisions like Judge Walker's decision overturning Prop. 8. Its just that those entities have to be organizations who's organization statement directly opposes same-sex marriage. Under the Supreme Court's case of Haven's Realty v. Coleman, Fair Housing organizations have standing to bring lawsuits because acts of housing discrimination violate the organization's purpose (to end housing discrimination). Thus, if one of the MANY organizations who oppose same-sex marriage (such as NOM) were the petitioners to the Supreme Court, there would be clear standing.
So, there is no good evidence in California that the same-sex marriage ban has any rational basis (other than gays are icky), and the wrong people are challenging the Court's ruling. Double oops.
At the same time, it couldn't happen to a nicer bunch of homophobes. After all, these are people who want to prohibit same-sex marriage. There really isn't a rational basis for any sort of ban beyond our own homophobia.
As far as today's argument went, I thought Olsen did a great job at the argument today, but I have one quibble - when he was asked by Justice Scalia when a ban on same-sex marriage was unconstitutional, he asked rhetorically, "When did the ban on interracial marriage become unconstitutional?" Which is a good rhetorical device, but it didn't drive home the point - same-sex marriage bans have been unconstitutional since the 14th Amendment was adopted, BUT, we only figured this out recently. Prior to that time, we, judiciary included, were blinded by our own homophobia. Just like a ban on interracial marriage should have always been deemed unconstitutional, but it was upheld by racist jurists. That should've been Olsen's point.
And here is where I sound a bit odd - like Scalia, I think of the Constitution as a "dead" document. Meaning that once the words are written on the page, they stay there. But, and this is where I differ, our interpretation of the Constitution changes based on the evidence presented to us. Thus, the First Amendment applies to blogs like this one, even though the Framers could never have imagined the internet. But I'm digressing. . .
I think that the Supreme Court is going to punt on this issue. Whether its holding that the Petitioners lack standing, or finding narrow grounds for upholding the 9th Circuit, the Supreme Court isn't going to jump into the fire. This is because Justice Kennedy isn't ready to pull the trigger, and Chief Justice Roberts doesn't want the Supreme Court to gain any more notoriety. Upholding a ban on same-sex marriage (and thus invalidating a finding of fact), or supporting same-sex marriage nationwide may be too much for the Court.
That said, the Olsen-Boies strategy of bringing a lawsuit under a state law, then trying the issue in open Court and obliterating the rationale of the anti-gay proponents of such bans is very, very good. And it will probably continue on for quite some time. If anything, Olsen and Boies screwed up by choosing California as the test run, and not Alabama (or Kansas, etc). Had they tried this case in Kansas, the Supreme Court's rationale would necessarily have to be broader than this one. But that's another case.
Tuesday, March 19, 2013
Looking Back At Iraq
In one of those shocking, but not so shocking timelines, today marks the 10th anniversary of the start of the War in Iraq. On one hand, a lot of American history has passed since that time, but at the same time, I feel old. After all, when we invaded Iraq, I was finishing my law degree and working for the Legal Clinic. I distinctly remember arguing with my conservative classmates about the upcoming war, and upon the invasion, I bet a classmate that the war would take more than two months. (By the way, since neither one of us wanted to actually benefit from the bet, the terms of the bet was that the loser would buy the dinner of a third classmate). Unfortunately, I "won" the bet, though I'm not sure if that third classmate ever got his dinner.
I had always opposed the Iraq War because, as I argued at the time, the premise made no sense to me. The premise was that Saddam Hussein had chemical/biological/nuclear weapons, and that he would give these weapons to Al Qaeda to carry out attacks on the United States. But such a theory completely ignored who Saddam Hussein and Osama bin Laden were.
Saddam Hussein was a crafty, but ultimately, a run-of-the-mill strongman. He wanted to be powerful, and to maintain power. If maintaining power meant intimidating his people through torture, murder, and occasional genocide (as he did in the Kurdish north), so be it. If taking power meant invading neighbors, then he would do that too. He would even attack Israel if it could dismantle an alliance arrayed against him. But, he was no idealist, and that was why the U.S. backed Saddam in his early days of power.
By contrast, Osama bin Laden was an idealist. He grew up rich, but left his riches to fight in Afghanistan. He fought the Soviets for ten years, and then turned his attention to the United States. Where Saddam Hussein was flexible ideologically, Osama bin Laden was not. Moreover, bin Laden opposed the secularism of the Ba'athist movement, which Saddam Hussein was.
In other words, these two were not going to be on friendly terms. Ever. The idea that Saddam would entrust WMD to someone he wouldn't like, much less trust, was HIGHLY unlikely. Add to that concept that Saddam before had only entrusted these weapons to his first cousin ("Chemical Ali"), and even if Saddam had WMD, the odds that he would give these weapons to Al Qaeda were next to none. Of course, it turns out that Saddam did not have any WMD anyway.
At the time, though, no one was going to listen to someone like me. I was, after all, just a law student. But, in the aftermath, the interesting thing is that the Iraq War had some interesting effects on American politics and journalism.
On the political side, the Iraq War was responsible for Barack Obama's election. Not completely responsible, mind you, but it had a huge effect because his early opposition to the Iraq War solidified his position with the base. During the primary, Clinton couldn't outflank Obama to his left (always a fear during a Democratic primary) because Obama opposed the Iraq War, and Clinton did not. This opposition allowed Obama to take more conventional positions, while getting credit for being more liberal than he actually was.* This had to drive Hillary Clinton completely crazy.
What's more, the Iraq War gave us the first glimpse of how inept the Bush Administration really was. Soldiers were sent out to war so ill-equipped that the folks back home actually spent their own money to get their relatives body armor. Soldiers and Marines who were injured had to deal with substandard health care back home. And the Bush Administration put Iraq in the hands men like Paul Brenner, et al., who consistently made horrendously bad decisions (such as, dismantling the Iraqi Army, failing to protect weapons caches, trusting Chalabi, and many, many more).
This ineptitude lead to the losses the Republican Party faced in 2006, 2008, and 2012. The only real win on the national stage for the GOP came in 2010, when a fair number of Republicans distinguished themselves from the Republican Party elites.
On the journalism side, the Iraq War really accelerated the changes in the media that had already begun. Bloggers, who got the Iraq War right, became more influential. Still, and as Media Matters reminds us, a fair number of commentators who got the Iraq War wrong are still in positions of power (many of whom predicted a Romney landslide, btw). Nonetheless, the media is more diverse, more fragmented than it was in 2003, and that's a good thing.
With that said, I still believe the Iraq War was a horrendous error that will haunt America for at least a generation. Even though we "won" the war, it cost tens of thousands of lives, and trillions of dollars. Strategically, it allowed Al Qaeda to survive much longer than it should. It probably has lead to the survival of the Taliban in Afghanistan. And Iraq is more fragmented and potentially dangerous than it was before.**
*Republicans, and especially conservatives, love to talk about how Obama wasn't fully vetted by the time he was elected. From the conservative prospective, this is nonsense. The conservative media threw everything at Obama, its just that nothing stuck. If anyone should be pissed about vetting, it has to be Clinton, who had a fair number of positions to Obama's left, and had to play the role of the conservative/moderate Democrat because of her support for the Iraq War.
**With one exception - the Kurdish region in Northern Iraq, which has been stable and prosperous ever since the War. Hopefully, this area won't destabilize Turkey, which has its own Kurdish population.
Subscribe to:
Posts (Atom)