Judges, birthers, and horse marriage



Before focusing this week on the usual topic - that, of course, would be health care reform, in its really, really, really final phase - let's first recap some of the lighter weekend fare:

Apparently, Chief Justice John Roberts got his magisterial robes badly ruffled during the State of the Union speech when President Obama assailed the 5-4 ruling that opened the floodgates for unlimited corporate spending in political campaigns. In remarks the other day at the University of Alabama, Roberts said it was "very troubling" to have to sit there and absorb Obama's rebuke while Democratic lawmakers were "cheering and hollering." He added, "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there."

Robert's pique was an issue on several Sunday shows. Obama press secretary Robert Gibbs confined his remarks to the historic ruling, calling it "a threat to our democracy," because there was obviously no percentage in picking a fight with Roberts himself. So let's do it here.

The Roberts court had just overturned 100 years of legislative and judicial precedent that had limited corporate spending in politics - even though Roberts himself had promised in his confirmation hearing to respect legal precedent and not legislate from the bench - but apparently he assumed that such a radical rewriting of the campaign rules would be met with the usual bowing and scraping. That's what happens when you live in a bubble where abject deference is a given.

Speaking of bubbles, Roberts also seems to believe that, on Obama's watch, "the State of the Union has degenerated into a political pep rally." Maybe he just hasn't been paying attention. State of the Union speeches have long been political pep rallies; as Justice John Paul Stevens remarks in the latest issue of The New Yorker, he stopped showing up roughly 30 years ago, because, in his words, "they are political occasions."

Take, for instance, the 2004 State of the Union pep rally, when President Bush road-tested his '04 re-election talking points by assailing the Democrats as wimps ("Some people question is America is really in a war at all...It is not enough to serve our enemies legal papers") and skewering "activist judges" for decisions that imperiled "the sanctity of marriage" - two themes that got the Republican lawmakers cheering and hollering.

And if Roberts thinks it's such a breach of decorum for a president to rebuke the high court during the State of the Union, perhaps he should read Warren G. Harding's 1922 SOTU speech, in which the Republican president directly attacked the court for overturning a law that abolished child labor. Harding complained, "Twice Congress has attempted the correction of the evils incident to child employment. The decision of the Supreme Court has put this problem outside the proper domain of federal regulation."

Actually, this past Sunday, Roberts took the biggest hit from an unlikely critic. On Fox News Sunday, neoconservative Bill Kristol suggested at first that Obama's podium rebuke might not have been "quite appropriate." But then he continued: "On the other hand, I've gotta say, judges and lawyers are awfully hypersensitive to any criticism. God forbid you should criticize the justices in all their regal majesty for getting something wrong. Presidents are entitled to say that, to think that...(Judges) do tend to take any criticism as lese majeste - and that's why I sort of admire the president for taking on the lawyers."

The caveat here, of course, is that Kristol has his own reasons for thinking the legal profession is "hypersensitive" to criticism; earlier this month, he helped launch a web ad that essentially questioned the loyalties of seven Justice Department lawyers who had worked on Guantanamo detainee issues. Kristol and his friends dubbed these lawyers the "al Qaeda 7," and...well...that McCarthyesque label has ticked off many sensitive souls in the legal profession.

So Kristol's Sunday sympathy for Barack Obama might be the year's strangest example of how politics makes strange bedfellows.


It appears that Virginia voters have inadvertently elected a fringe character to serve as state attorney general. This was first evident in February, when Ken Cuccinelli filed a federal appeals court petition asking the Environmental Protection Agency to rethink its finding that global warming poses a threat to people; and it was evident earlier this month, when Cuccinelli sent a letter to public universities in Virginia, ordering them to roll back their policies that banned discrimination on the basis of sexual orientation.

But now a Virginia blogger has unearthed an '09 campaign trail interview, in which Cuccinelli puts on the tinfoil hat and talks like a birther, about the "speculation" and "possibility" that Obama was really born in Kenya and therefore might not have the legal standing to sign federal legislation into law. The highlights:

Q: What can we do about Obama and the birth certificate thing?

Cuccinelli: It'll get tested in my view when he signs a law and someone is convicted of violating it, and one of their defenses will be it's not a law if someone qualified to be president isn't signing it.

Q: Is that something you can do as attorney general?

Cuccinelli: Well, only if there's a conflict where we're suing the federal government for a law they've passed. So it's possible.

Q: 'Cause we're talking about the possibility he was not born in America.

Cuccinelli: Right, but at the same time, under Rule 11, federal Rule 11, we gotta have proof of it.

Q: How can we get proof?
Cuccinelli: Well, that's a good question...Someone's going to have to come forward with nailed-down testimony that he was born in Place B, wherever that is. The speculation is Kenya...And that doesn't seem beyond the realm of possibility.

After this interview surfaced early yesterday, Cuccinelli went into spin overdrive, walking back his remarks in an email to MSNBC: "I absolutely believe that President Obama was born in the United States. I don’t buy into the claims that he wasn’t. On the recording, I was asked a hypothetical legal question, and I gave a hypothetical legal answer in response."

If that's what Virginia's top elected legal officer truly believes - that Obama was born here - why didn't he just short-circuit the questioner by stating that belief at the outset? Two possibilities: Either he cynically figured that he needed the nutcase vote in order to win, or he truly suspects that Obama might be from Kenya. Either way, yesterday's spin can't erase what he said. Keep an eye on this guy; he clearly sees an opening on the right flank.


And speaking of the right flank, we have the Sunday radio remarks of J. D. Hayworth, the former Arizona congressman who is challenging John McCain in a '10 Republican Senate primary, on the grounds that McCain is not conservative enough.

McCain, for instance, opposes gay marriage - but Hayworth outflanked him the other day by insisting that he really, really, really opposes gay marriage...because, as he sees it, if gays get the right to marry, then what's to stop a person from marrying a horse?

Here's Hayworth, on the radio: "You see, the ('03) Massachusetts Supreme Court, when it started this move toward same-sex marriage, actually defined marriage - now get this - it defined marriage as simply, 'the establishment of intimacy.' Now, how dangerous is that? I mean, I don't mean to be absurd about it, but I guess I can make the point of absurdity with an absurd point - I guess that would mean if you really had affection for your horse, I guess you could marry your horse. It's just the wrong way to go."

It might be worth pointing out that the Massachusetts Supreme Court did not talk only about intimacy, that in fact the court linked intimacy to "family" and "fidelity," and it might be worth pointing out that the Republican-led Massachusetts court specifically defined marriage as "the voluntary union of two persons as spouses, to the exclusion of all others." Whatever. Let's just ponder Hayworth's warning about marrying a horse. I could swear I have heard this scenario somewhere before...bear with me...

Got it. In Woody Allen's 1969 movie, Take The Money And Run, the narrator describes the gang that Woody is assembling to rob a bank: "Among the ones chosen are some of the sinister names in the underworld. William Amerz, wanted by the police for bank robbery, assault with a deadly weapon, murder, and getting naked in front of his in-laws. Frankie Wolf, wanted by federal authorities for dancing with a mailman. A.D. Armstrong, wanted all over the country for arson, robbery, assault with an attempt to kill, and marrying a horse."

Fear not, convict. If Hayworth's worst fears are realized, you will soon be free as a bird to bed down in the stable.