Virginia’s House of Delegates yesterday rejected the nomination of a state prosecutor to serve as a judge – just because he is openly gay.
Tracy Thorne-Begland, a Navy veteran who has been a prosecutor in Richmond for 12 years, enjoyed bipartisan support in the House of Delegates until, at the last minute, he came under attack from far-right Delegate Bob Marshall and the right-wing Family Foundation. The Richmond Times Dispatch reports:
A late-hour lobbying offensive by social conservatives prevailed in the House of Delegates early Tuesday to torpedo bipartisan support for the judicial nomination of an openly gay Richmond prosecutor.
After a lengthy discussion, the GOP-controlled House of Delegates defeated the nomination of Tracy Thorne-Begland, Richmond's chief deputy commonwealth's attorney. He would have been the first openly gay judge elected in Virginia.
Thorne-Begland received 33 votes, and 31 delegates voted against him. He needed a majority of the 100-member House -- 51 votes -- to secure the judgeship.
In an email blast to supporters late last week, the Christian conservative Family Foundation questioned Thorne-Begland's fitness for the bench given his support for gay marriage, which is not legal in Virginia. Thorne-Begland and his partner, Michael, live together and are raising twins.
Marshall, too had charged that Thorne-Begland pursued an "aggressive activist homosexual agenda.
Opponents of gay rights, in their effort to keep LGBT people out of the public square, have in the past few years gone after several openly gay judges and judicial nominees. Supporters of California’s discriminatory Prop 8 tried to get a federal judge’s ruling against them thrown out because the judge is openly gay. Another judge issued an epic takedown of their argument.
A number of Republican delegates in Virginia, as well as the state’s socially conservative governor Bob McDonnell backed Thorne-Begland’s nomination until Del. Marshall began his onslaught.
Del. Marshall is the one who claimed in 2010 that disabled children are God's punishment for abortion. On Don’t Ask, Don’t Tell – a policy that Thorne-Begland worked to end after his distinguished career in the Navy – Marshall said openly gay troops would distract their fellow servicemembers: "It's a distraction when I'm on the battlefield and have to concentrate on the enemy 600 yards away and I'm worried about this guy whose got eyes on me." Once Don’t Ask, Don’t Tell was repealed, Del Marshall tried to get gay Virginians banned from the state’s National Guard.
Marshall later told the Washington Post that he objected to Thorne-Begland’s brave coming out in protest of Don’t Ask, Don’t Tell:
I would guess — law of averages — we’ve probably nominated people who have homosexual inclinations,” Marshall said. Marshall faulted Thorne-Begland for coming out as a gay Naval officer on “Nightline” two decades ago to challenge the military’s now-repealed ban on gays openly serving in the military. He said that amounted not just to insubordination, but to a waste of taxpayer dollars, since it resulted in his dismissal from the Navy. “The Navy spent $1 million training him,” Marshall said. “That’s cheating the country out of the investment in him.”
In the end, it was Del. Marshall’s arguments that won out in the effort to halt the career of a dedicated Virginia public servant.
Last week, Virginia Gov. Bob McDonnell buckled under nationwide pressure and forced his allies in the state’s legislature to revise a bill they had passed mandating forced, medically unnecessary transvaginal ultrasounds for women seeking abortions. That the bill was tweaked to no longer require women to be vaginally penetrated without their consent – a requirement that McDonnell, until he was met with a national outcry, was all set to sign into law -- was an important victory for pro-choice and common-decency activists.
But we need to remember just how far anti-choice politicians are willing to go. Just a few years ago, before the War on Women kicked into full swing, we wouldn’t have known that we’d have to be fighting state-mandated vaginal probes. In fact, just a few years ago, the amended bill passed by the Virginia Senate today would have been seen as extreme in itself.
The bill that the Virginia Senate passed in a 21-19 vote today requires all women seeking an abortion to first undergo a medically unnecessary external ultrasound – unless they can prove they are pregnant as a result of rape or incest.
It’s important to remember just how extreme the bill still is. Virginia Republicans are mandating that doctors perform a medically unnecessary procedure whether or not their patient requests it, unless that patient can produce a police report to prevent it. It creates a situation that’s ethically difficult for doctors and absolutely demeaning for women.
If Gov. McDonnell signs the bill, which he is expected to do, Virginia will join seven other states that currently require pre-abortion ultrasounds.
Virginia governor Bob McDonnell announced this afternoon that he has, in fact, changed his mind on a newly-passed state bill that would require women seeking abortions to first undergo a vaginal probe without their consent. McDonnell had spoken in support of the bill before it sparked a national outcry. He then remained conspicuously silent for several days before coming out with recommended amendments to the bill to make it slightly less repulsive.
The governor said in a statement this afternoon:
For this reason, I have recommended to the General Assembly a series of amendments to this bill. I am requesting that the General Assembly amend this bill to explicitly state that no woman in Virginia will have to undergo a transvaginal ultrasound involuntarily. I am asking the General Assembly to state in this legislation that only a transabdominal, or external, ultrasound will be required to satisfy the requirements to determine gestational age. Should a doctor determine that another form of ultrasound may be necessary to provide the necessary images and information that will be an issue for the doctor and the patient. The government will have no role in that medical decision.
McDonnell’s backtracking on this component of the mandatory ultrasound bill is a partial but important victory for reproductive rights advocates who explained clearly in Virginia and around the nation what an atrocity the bill would have been.
But it’s also important to remember how far anti-choice politicians will go if they aren’t called out on their activities. Just last week, Virginia's House passed not only the invasive ultrasound bill, but also an extreme “personhood” bill that could endanger legal birth control. Last year, Gov. McDonnell signed unnecessary regulations meant to shut down most of the state’s abortion clinics.
At the same time as Virginia was considering its new assaults on choice, the House held a hearing on President Obama’s requirement that insurance cover contraception, and invited only men. Both major GOP presidential candidates came out for an anti-contraception policy that’s to the right of most Catholics.
McDonnell claims he didn’t know the details of the atrocious ultrasound bill when he previously supported it. But the truth is probably a lot more cynical – he wants to be the GOP vice presidential nominee, and he knew he couldn’t get away with something this extreme. When it came to mandatory invasive ultrasounds, McDonnell got caught between the anti-choice base and everybody else. Every anti-choice politician with national ambitions should face the same pressure.
Last week, we wondered if Virginia Gov. Bob McDonnell, a possible GOP vice presidential contender, would reconsider his position on a shocking anti-choice bill passed by the state’s legislature after it provoked a national outcry. The bill would require women seeking abortions to first undergo a medically unnecessary, highly invasive trans-vaginal ultrasound without their consent – a process which, under any other circumstances, would be considered rape under state law.
Gov. McDonnell had spoken in support of the bill before it was passed, but once the outcry against it began, fell oddly silent. Now, the Washington Post reports, he may be backing away from his support for the bill and looking for a compromise that will allow him to keep his anti-choice cred, while disassociating himself from one of the most egregious instances of the War on Women to come out of last week:
Gov. Robert F. McDonnell is backing off his unconditional support for a bill requiring women to have an ultrasound before an abortion, focusing new attention on one of the most controversial pieces of legislation in Virginia’s General Assembly this year.
Until this weekend, McDonnell (R) and his aides had said the governor would sign the measure if it made it to his desk. McDonnell, who strongly opposes abortion, will no longer make that commitment.
But delegates and governor’s staff were scheduled to meet Tuesday night to strike a compromise after learning that some ultrasounds could be more invasive than first thought, according to two officials who were aware of the meeting but not authorized to speak about it publicly. Many of the bill’s supporters were apparently unaware of how invasive the procedure could be, one of the officials added.
I doubt that McDonnell didn’t know the details of the bill before he spoke in favor of it. But after last week, he knows that signing it will hurt him among all but the most extreme anti-choice voters.
The Family Research Council sent word today that GOP presidential frontrunner Mitt Romney is now confirmed to join Rick Perry, Michele Bachmann, Rick Santorum, Ron Paul and Herman Cain at this year’s Values Voter Summit, a far-right extravaganza hosted by some of the most intolerant Religious Right groups in the business. Organized by the vehemently anti-gay Family Research Council, the event is also sponsored by the American Family Association and Liberty Counsel, among other right-wing groups.
Last year, we raised an alarm when Romney and Bachmann, along with Virginia Gov. Bob McDonnell, Rep. Mike Pence and former Arkansas Gov. Mike Huckabee attended the event. We were particularly concerned that these leaders would be willing to share the stage with the American Family Association’s spokesman Bryan Fischer, whose record of bigotry against gays and lesbians, Muslim Americans and American Indians, among others, is truly appalling.
Although Fischer is not yet listed as a confirmed speaker at this year’s event, attendees will have the honor of sharing the stage with some pretty extreme Religious Right activists, including Liberty Council’s Mat Staver, who opposes anti-bullying initiatives that protect LGBT kids and says that gay rights supporters have “a very militaristic anti-Christian viewpoint”; retired General Jerry Boykin, who thinks President Obama is using health care reform legislation to recruit an army of brownshirts loyal only to him; and Star Parker, who claims that black family life “was more healthy” under slavery than today.
And that’s not to mention the two main organizers of the event, the FRC and the AFA, which have both been listed as hate groups by the Southern Poverty Law Center for their propagation of false anti-gay rhetoric.
Highlights of last year’s summit included FRC leader Tony Perkins simultaneously insulting gay troops and a number of key U.S. allies in Iraq and Afghanistan by declaring that countries that allow gays and lesbians to serve openly in their armed forces are “the ones that participate in parades, they don't fight wars to keep the nation and the world free”; and Rick Santorum asserting that there are “no families” in impoverished neighborhoods.
Apparently the tone of last year’s event and the guest list of this year’s haven’t given any pause to the top GOP presidential candidates, who are eager to recruit the support of even the most extreme leaders of the Religious Right. That Romney is returning to VVS is an important reminder that, despite his self-styled “moderate” image, he is just as beholden to extreme Religious Right interests as the rest of the field.
In a badly-needed boost to the rule of law and the nation's much-abused new health reform, a three-judge panel on the Fourth Circuit today rejected two attacks on "Obamacare." In one case, Virginia v. Sebelius, the appeals court found that the Commonwealth of Virginia lacked standing to challenge the individual mandate provision and in the other, Liberty University v. Geithner, it ruled that a challenge to the plan's financial penalty for not purchasing individual health insurance coverage was not ready to be heard since the penalty constitutes a tax and taxes may not be challenged until after they have gone into effect and been paid. Both decisions by Circuit Judge Diana Gribbon Motz are a breath of fresh air in a legal and political environment now polluted by partisan and ideological attacks on the health plan.
The decision in the Virginia case, brought by the state's Attorney General Ken Cuccinelli, was an emphatic victory for basic rules of federalism and judicial restraint. Judge Motz found that the court could not hear the case because Virginia lacked standing under long-established jurisdictional principles. As a state, Virginia suffered no "injury in fact" because of the individual insurance mandate it was challenging; the state itself is not "burdened" by it, state officials are not "commandeered" by it, and state sovereignty is not impaired in any way by it. Virginia asserted that it had standing because of a conflict between the new law and a state statute, the "Virginia Health Care Freedom Act," a statute which was transparently cooked up by the legislature for the sole purpose of creating a conflict with the federal health reform law. This state law simply declared that no resident of Virginia "shall be required to obtain or maintain a policy of individual insurance coverage." It had no enforcement mechanism and existed solely for purposes of organizing litigation against the national government. Judge Motz correctly found that, if this kind of metaphysical declaration were enough to create standing, a state could concoct jurisdiction to challenge any federal law just by writing a "not-X" statute. I recall that opponents of the health reform introduced the same meaningless legislation in Maryland and I took great pleasure in pointing out that it had no content. At any rate, Judge Andre Davis dissented from the decision, arguing that the standing problem was no big deal; he would have simply ruled that the individual mandate provision did not exceed Congressional power under the Constitution—and, on this point, he is clearly right.
The other decision, in the Liberty University case, was based on the significant new ruling that the individual insurance mandate is actually a form of federal taxation and the federal Anti-Injunction Act prevents the court from entertaining challenges to taxes until they actually go into effect and have been paid by the litigants. "A taxpayer can always pay an assessment, seek a refund directly from the IRS, and then bring a refund action in federal court," Judge Motz wrote, but the Anti-Injunction Act bars pre-enforcement actions. It is definitely of note that Judge Motz found that, under the Act, financial penalties and exactions are to be treated like a "tax." Both supporters and critics of the decision are noting that this may mark an effort to define and defend the individual insurance mandate as a legitimate exercise of the congressional Taxing power, but this may be over-reading into the court's interpretation of the Anti-Injunction Act, which does have its own body of rules and precedents.
It's not clear yet whether the disappointed litigants will try to take the case en banc to the full right-leaning Fourth Circuit or petition for appeal directly to the Supreme Court. All roads lead to the Supremes in this case since there is currently a split between the Sixth Circuit, which upheld the constitutionality of the individual mandate, and the Eleventh Circuit, which struck it down. In addition, the DC Circuit will be hearing oral arguments in a healthcare challenge in two weeks, so it, too, may add its voice to the discussion by the end of the year. At some point next year, the justices will have to grab the bull by the horns and decide whether they want to fully revive the class-driven judicial activism of the Lochner period by knocking down laws promoting public health and welfare.
The Wisconsin GOP has been going to great lengths to sabotage efforts to conduct fair and open recall elections in Wisconsin. Instead of honestly putting their candidates against the Democrats and letting the voters decide between the two, they are running fake Democratic candidates in the primaries in an attempt to confuse voters and draw out the process. They have even distributed posters designed to encourage Republican voters to participate in the Democratic primary and vote for their planted candidates.
Adding to the list of dirty tricks, reports are surfacing that a “Right to Life” group is robocalling Wisconsin Democrats and telling them not to go to the polls today, and instead to wait for an absentee ballot to arrive in the mail. This is false, as July 12 is the last day to cast a vote in the Democratic primary, and there is not enough time to cast a vote by mail. Apparently, the robocalls are coming from a 703 area code (Virginia).
We do not know yet exactly who is ultimately responsible for these calls, and even if an individual is caught and takes the fall, we may never find out who’s really pulling the strings. Whoever they are, they are obviously people in synch with the right wing agenda of Governor Walker and the Koch Brothers. Disenfranchising voters by tricking them into not voting is a tried and true method of voter suppression. So is finding excuses at the polling place to keep certain people from voting, as GOP-pushed voter ID laws do. What all the tactics we see in Wisconsin have in common is that the right wing is pulling out the stops to prevent the people from exercising their constitutional right to remove them from office.
The Senate today confirmed three of President Obama’s nominees to fill long-vacant posts in the Justice Department, including, at long last, a leader for the DOJ’s Office of Legal Counsel.
The Senate confirmed attorney Virginia Seitz to head the Office of Legal Counsel, which hasn’t had a permanent, Senate-confirmed head since 2004. President Obama’s first nominee to fill the position, the well-respected and highly qualified law professor Dawn Johnsen, came under fire from Republicans for her support of abortion rights and opposition to torture, and withdrew her nomination last year after over a year of obstruction and gridlock
The OLC essentially acts as the White House’s private law firm, advising the president and executive branch agencies on the constitutionality of their actions
Besides Seitz, James Cole was confirmed to serve as Deputy Attorney General, a position that has been vacant since February 2010, and Lisa Monaco was confirmed to lead the DOJ’s National Security Division, which has been vacant since March.
The Roberts Court is notorious for too often seeking excuses to close the courthouse door and keep individuals from vindicating their rights. So yesterday’s unanimous opinions in Bond v. US and Smith v. Bayer were refreshing.
In Bond, the Court ruled that an individual has standing to challenge a federal criminal conviction that she claims violates the Tenth Amendment. That Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Cited by many Tea Partiers as part of their efforts to diminish federal authority, it goes to the federal structure of our country and the rights of states; it does not directly address the rights of individuals. However, that does not bar individuals from standing to argue that they have been harmed by a congressional act that violates the Tenth Amendment.
Yesterday’s Supreme Court decision completely and correctly bypassed the substantive issue and remanded it to the lower courts. But regardless of the merits of Bond’s argument, she has the right to make it as someone whose freedom or imprisonment rests on whether the law she is challenging is constitutional.
Smith v. Bayer was similarly a breath of fresh air. The case asked if a federal court that has denied class certification can prohibit a separate West Virginia state court lawsuit seeking class certification in a case that is brought by people who had not been part of the federal lawsuit, but who would have belonged to the federal class had it gone through. A federal law called the Anti-Injunction Act authorizes a federal court to shut down state litigation of a claim or issue that was already presented to and decided by the federal court.
In an opinion authored by Justice Kagan, the Supreme Court unanimously pointed out that the federal rules on when you can validly form a class are not necessarily the same as West Virginia’s rules. So the state court was addressing a new legal question, not the one that the federal court had already addressed. In addition, eight of the Justices (all but Justice Thomas) agreed that because the federal class status was denied, Smith was by definition not a party to the federal claim and cannot be bound by it.
While the Supreme Court kept the courthouse doors open in these two cases, there are still cases pending like Wal-Mart where the Corporate Court can do significant damage to people’s ability to hold corporations accountable.
Inside yesterday's Supreme Court opinion in Smith v. Bayer lies a repudiation of much of the far right's propaganda about judges. The severely flawed analogy of a judge interpreting the law with an umpire calling balls and strikes is one the right has favored since John Roberts used it at his confirmation hearing for his nomination to be Chief Justice. What makes yesterday's repudiation particularly interesting is that every member of the Court, including Roberts, signed on to it.
The opinion discussed whether one could assume that West Virginia's rule on forming class actions is the same as the federal rule, whose wording it closely follows. The lower court had concluded that the state rule is the same as the federal one. But as the unanimous Supreme Court explained:
The Eighth Circuit relied almost exclusively on the near-identity of the two Rules' texts. That was the right place to start, but not to end. Federal and state courts, after all, can and do apply identically worded procedural provisions in widely varying ways. If a State's procedural provision tracks the language of a Federal Rule, but a state court interprets that provision in a manner federal courts have not, then the state court is using a different standard and thus deciding a different issue.
In other words, you can't just read the text of a law and automatically know how to interpret it. Different judges can reasonably come to different conclusions about how to interpret the exact same text. The Justices do not condemn state courts for this, but instead understand it as an unexceptional aspect of jurisprudence.
In other words, judging is not simply the mechanical calling of balls and strikes.
As a presidential candidate, Barack Obama let us know who he would be selecting as judicial nominees.
You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.
This “empathy standard” became a red herring used to attack the President and qualified jurists like Sonia Sotomayor and Elena Kagan. Then Senator Ted Kaufman (DE) emphasized just how wrong that argument was.
Likewise, President Obama’s promotion of empathy is not, as his critics suggest, the advocacy of bias. “Empathy,” as a quick look at the dictionary will confirm, is not the same as “sympathy.” “Empathy” means understanding the experiences of another, not identification with or bias toward another. Let me repeat that. “Empathy” means understanding the experiences of another, not identification with or bias toward another. Words have meanings, and we should not make arguments that depend on misconstruing those meanings.
As we continue to hear empathy trotted out as something sinister, it’s important to consider where our country might’ve been without it. That’s the lesson of The Loving Story.
Virginia’s argument that its law did not discriminate on the basis of race because it restricted both whites and African Americans equally might have persuaded Justices who were blind to the devastating impact of anti-miscegenation laws on everyday people. However, empathy allowed the Supreme Court in Loving v. Virginia to see what it really meant to ban interracial marriage. Yet just because that meant the Warren Court came down on the side of the “little guy,” doesn’t mean it ignored constitutional principles.
This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.
It just so happens that the Lovings were on the right side of the Constitution in their struggle to live with who they loved, where they were happiest, and where they wanted to raise their family.
If you get the chance to see The Loving Story, as I did at a DC screening earlier this week (more in Silver Spring next week), think about Mildred and Richard Loving and the countless couples who faced the same struggle. Think about how their state laws wronged not only them but also the Constitution. Think about how empathy put justice back on track.
Laura Murphy, Director, ACLU Washington Legislative Office, sums it up better than I ever could.