Author: Andrew Sullivan

Palos Verdes, California, 9.30 am

Bloomberg is a woman?

Orin Kerr keeps asking how much the factual record matters in Perry v Schwarzenegger:

Appellate judges will naturally discount, if not entirely ignore, efforts to create false certainty out of unknowns by stating that they are facts. To pick an extreme example, imagine Judge Walker made a factual finding that “the defendant’s position that Prop 8 is unconstitutional is incorrect.” If appellate courts have to defer to everything a District Judge labels a fact, then would that mean the appellate courts have to defer to this judgment? If so, that would make the constitutionality of same-sex marriage entirely up to the discretion of the District Court Judge. The judge could make his decision unreviewable — either way — by presenting his legal conclusion as a fact. And what if two District Court judges disagree on the factual findings? What is the Supreme Court supposed to do to reconcile opposite conclusions? For such reasons, the fact section of Judge Walker’s opinion is likely to matter a lot less than it would normally matter in appellate litigation.

Is it an “unknown” that there are no procreative conditions for a marriage license in California? Is it an “unknown” that gay couples are as capable of committing to one another and taking care of one another as heterosexuals? Is it an unknown that civil marriage is not a religious institution and requires no religious test and is indeed available to atheists? Those are the facts Walker is pointing out. I don’t doubt that they can be reviewed; but how could they be denied? Kerr points to this Kennedy ruling:

A State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” A statute is presumed constitutional, , and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it “ ‘is not made with mathematical nicety or because in practice it results in some inequality.’ “The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.”

But in the same decision, Kennedy also writes

the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation.

That‘s the point Walker is making. And the defenders of Prop 8 could not provide any “footing in the realities of the subject”. (I’m assuming no difference here between a law and a Proposition and I may be wrong. For the record, the California legislature passed a marriage bill twice, only to be vetoed by the governor.) Kerr’s strongest point is that a prediction of no social harm cannot be seen as a fact. But that merely brings us back to the same pure-tradition argument, which argues that a mere intuition of social damage, even if based in no historical or sociological reality, is enough to justify a proposition that ensured a minority be denied equal status with a majority. Maybe Kennedy believes that. But he didn’t seem to in Lawrence or Romer.

Leonhardt reads the jobs report and finds some glimmers of hope. Avent's analysis is similar:

All things considered, the view is of an economy that continues to recover, adding private employment and utilising (and paying) existing workers more. But that recovery is facing stiff headwinds from two sources—the drawdown in government activity associated with the end of stimulus and continued cuts at the state and local level, and the burden of large pool of marginally attached workers and long-term unemployed. The economy will probably manage to weather this period and continue its moderate expansion. But for the moment, the situation does look uncomfortably unclear.

Megan:

The long-term unemployment number worries me greatly.  I had a conversation with a friend the other day who was pushing back on my support for 99+ weeks of unemployment benefits; at some point, he said, these people have to get jobs, and helping them grow the gap on their resume is not a good long-term strategy.  I'm not convinced that many of these people could find jobs–some people are undoubtedly coasting, but really, how far can you coast on $300 a week?

Volokh wonders how the Prop 8 ruling might impact DOMA.

Blumenthal compares dueling polls on the Bush tax cuts:

What these seemingly contradictory results imply … is that a large number of Americans are hazy on the details of whose taxes were cut when George W. Bush was president, whether those cuts were intended to be temporary or permanent, what impact they have had on the deficit and the terms of the current debate. As such, their reactions to poll questions on the subject may vary widely depending on the language used and the options offered.

If you want to produce a poll finding that supports your side of the tax-cut debate, you probably can, but the voice of "the people" may not be as clear as some headlines make it out to be.

This is an extremely insightful post.

Frum doesn't believe that same-sex marriage initiatives helped Bush in 2004:

Of the 5 states in which George W. Bush’s vote rose MOST between 2000 and 2004, not one had a same-sex marriage initiative on the ballot. Of the 10 states in which Bush’s vote rose LEAST, three had such an initiative. Some say Ohio was tipped to Bush by a same-sex marriage initiative. But Bush won Ohio in 2000. Measured by increase in the Bush share of the vote, Ohio ranked 41 out of 50.

Serwer picks up on a rhetorical sleight of hand:

Kristol isn't the first person to invoke "decent Muslims" whose decency is predicated on their opposition to religious freedom for other Muslims. Sarah Palin memorably asked "peaceful Muslims" to "refudiate" the project, and former New York Mayor Rudy Giuliani, said that opposition to the community center "will not and should not insult any decent Muslim because decent Muslims should be as opposed to Islamic extremism as you and I are.” By this definition, "Islamic extremist" is a label that applies to the kind of Imam who helps the FBI reach out to the American Muslim community after 9/11 and says "[f]anaticism and terrorism have no place in Islam."

Packer defends his article:

The main criticisms of the piece have come from Republicans, and their argument (for example, David Frum’s—still doing the hard work of keeping both sides honest) is that what looks to the left like obstruction is really only the minority party reflecting the public’s reservations about Obama’s agenda, and, beyond that, fulfilling the Senate’s constitutional mandate. I would answer that, on health care, for example, where the public was truly divided and, by some polls, increasingly skeptical, the Senate Republicans should have tried to negotiate a less sweeping bill.

Instead (as Frum himself famously pointed out), they shut down negotiations altogether, leaving Olympia Snowe as the lone party holdout, and not for long. They weren’t trying to legislate better; they were trying to prevent any legislation at all. The same with the stimulus bill and financial reform. As Michael Bennet told me, the Senate isn’t on the level: the amount of bad faith is staggering (and yes, there’s plenty on the Democratic side as well). And the daily toll of legislative blockage is also staggering. The filibuster has become the everyday norm in this Senate—which has nothing to do with the constitution, moderation, the saucer that cools the coffee, or anything else written and said two hundred twenty years ago.