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Steve Friess introduces us to Judge Jeffrey Sutton “the inscrutable swing vote on the Federal Sixth Circuit Court of Appeals’ three-judge panel, which is due to rule any day now on six gay-marriage cases that span Michigan, Tennessee, Ohio, and Kentucky”:

In the complicated legal morass created by the Supreme Court’s refusal to hear appeals in several gay-marriage cases, the legal consensus is that SCOTUS decided it could keep ducking because every appellate court thus far has ruled the same way — that is, for marriage equality.

Sutton, flanked at oral arguments in August by one judge who was almost comically pro-marriage equality and another who seemed solidly on the other side, finds himself in a fascinatingly powerful position. If he concurs with the eight circuits that have already found a fundamental right to same-sex marriage, his vote will expand marriage equality to four more states. If he and the Sixth Circuit come down in support of the right of states to ban gay marriage, the Supreme Court, faced with conflicting rulings among the circuits, will almost certainly step in to take the case. If that happens, there is good reason to think that marriage equality will become the law of the land.

Which is all to say Sutton could be doing gay marriage a big favor whichever way he votes.

Dale Carpenter explains what happens if Sutton rules in favor of marriage equality:

If the Sixth Circuit does this, gay marriage would be legal in Kentucky and Tennessee, and the states of Ohio and Michigan would have to recognize same-sex marriages from out of state. One or more of the states might simply acquiesce to the decisions, as other states have done when further appeal became fruitless. If the states petitioned the Court, it would likely deny their petitions since there would still be no circuit split. It also seems likely that stays on the lower-court decisions would be immediately or very quickly lifted since the stays had functioned only to preserve a status quo that the Supreme Court has now let pass. …

The onus would then fall on the Fifth, Eighth, or Eleventh Circuits to reject same-sex marriage claims. Any of them would have to be considered more likely to uphold SSM bans than the circuits that have decided the matter thus far. But given that oral argument has not been scheduled in the Fifth Circuit, that briefs have not yet been filed in the Eleventh Circuit, and that there is not even a case before the Eighth Circuit, a decision from one of them would probably put the matter off for at least another Term.

But Damon Root points out that Sutton could “uphold the gay marriage bans as an act of judicial deference, the legal philosophy which says that the courts should give lawmakers the benefit of the doubt and therefore rarely strike down democratically enacted statutes”:

After all, the last time Sutton found himself at the center of a roiling national debate over the wisdom of a controversial piece of legislation, he voted to sustain the law in part on those very grounds.

What case was that? It was Sutton’s 2011 opinion in Thomas More Law Center v. Obama, in which the 6th Circuit upheld the constitutionality of the Patient Protection and Affordable Care Act, aka Obamacare. According to Sutton, the great legal battle over President Obama‘s health care law is “just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution” than the debate over the constitutionality of the Second Bank of the United States at issue in McCulloch v. Maryland (1819). And in that foundational case, Sutton observed, “the Supreme Court erred on the side of allowing the political branches to resolve the conflict.” Similarly, he declared, the fate of Obamacare should be decided by “the peoples’ political representatives, rather than their judges.”

Equality has come to Nevada and West Virginia. Joe Jervis quips:

When you get to post a new Wikipedia map twice in a few hours, that was a very good day for our people. When you get to post a new Wikipedia map eight times in four days, that was one of the best weeks in our history.

Lyle Denniston checks in on those states without marriage equality:

A decision by the Ninth Circuit on Tuesday to nullify a ban in Idaho (along with the ban in Nevada) created the likelihood that prohibitions would soon be set aside also in Alaska, Arizona, and Montana.  However, Idaho has a challenge pending with Supreme Court Justice Anthony M. Kennedy; the same-sex couples involved in that case filed their response late Thursday afternoon, arguing that state officials “point to nothing that would justify” postponement of the Ninth Circuit decision “only days after the Court denied every other petition presenting the same claim.”

A decision by the Tenth Circuit against bans in Oklahoma and Utah (and left intact by the Supreme Court on Monday) suggested that similar prohibitions would be ended in Kansas and Wyoming.  In Wyoming, a federal trial judge on Thursday scheduled a hearing for October 16 on whether to allow same-sex couples to begin marrying in that state.  In Kansas, state officials have said they were studying the situation, but a state judge in a district in the Kansas City metropolitan area on Wednesday ordered clerks in that district to begin issuing marriage licenses to same-sex couples.

A case in Alaska begins today. Zack Ford examines the situation on North Carolina:

North Carolina is another state where a change could come quite soon. The state stopped defending the ban back in July, but several GOP lawmakers, led by House Speaker and U.S. Senate candidate Thom Tillis (R), are trying to take up the fight. To advise them,they’ve even hired National Organization for Marriage Chairman John Eastman. While their motion to intervene in the case has not yet been considered, a federal judge ruled Thursday night that they will not be granted the eight-day extension they requested. They have until noon Friday to file their finalized motion to intervene, and the case could advance — or be resolved — quite quickly after that.

Dahlia Lithwick and Sonja West take a closer look at Kansas and South Carolina:

The state is presumably under the jurisdiction of the 10^th Circuit, which also covers Utah, whose appeal was batted away by the Supreme Court on Monday. The 10^th Circuit ruling that same-sex marriage bans are unconstitutional should therefore be the law in Kansas. Moreover, state law provides that a clerk who issues a license to “unqualified” people could be found guilty of a misdemeanor. So on Wednesday, Chief District Judge Kevin Moriarty of Johnson County issued an order directing the district court clerk to issue licenses to same-sex couples without fear of prosecution, reasoning that state laws—statutory or constitutional—are void if they contradict federal law, and that after Monday Kansas is bound by the 10^th Circuit decision. But other judges in the same county disagree. And a judge in a different county has already denied a couple seeking a license because, in her view, Kansas’ ban on same sex marriage has not been explicitly struck down.

Meanwhile, Kansas Attorney General Derek Schmidt and Gov. Sam Brownback declined to accept the Johnson County ruling. Brownback issued a statement Wednesday night indicating that “An overwhelming majority of Kansas voters amended the constitution to include a definition of marriage as one man and one woman.” The statement asserted, “Activist judges should not overrule the people of Kansas.” Is Judge Moriarty an “activist Judge”? Or is he merely aware of the existence of the Supremacy Clause? Who knows?

Over in South Carolina? Same deal. Depending on which courthouse you visit, you can procure either a marriage license or a refusal.

(GIF by David Mendoza)

We bleg, you respond – this time by emailing “examples of jargon that is is designed explicitly as a euphemism to disguise the core reality.” One reader writes:

The use of the words “Collateral Damage” has always made me cringe. The US Dept of Defense Dictionary of Military and Associated Terms defines collateral damage as the “unintentional or incidental injury or damage to persons or objects that would not be lawful military targets in the circumstances ruling at the time.”

Really? Killing someone is “damage”. Collateral Death is more like it.

Another points to “‘disposition matrix’, to refer to the CIA’s kill list.” Another:

While the titles of most legislation coming out of Congress usually makes me cringe , I’m going to have to go with USA PATRIOT Act as perhaps the most Orwellian, in that it contains some of the most anti-Bill-of-Rights (if not anti-Constitutional) legislation ever enacted in this country. Basically, it’s little more than “be patriotic and give up a good chunk of your rights because terrorism!” I count the Patriot Act and its reauthorizations as perhaps Osama Bin Laden’s greatest accomplishment …

Another reader:

“Ethnic cleansing” always struck me as a gross Orwellian term.  Sounds like something is being made better and more clean. I was very surprised when the U.S. used the term regarding Bosnia (although using “genocide” has legal implications for a nation). Still, there has to be a better term.

Shifting to employment:

When my mother was laid off from her job as a bank teller at the age of 60, she was told that she was “non-selected”.

Another has three more: “rightsize, early retirement option, workforce imbalance correction.” Another writes:

When large companies outsource a division to a cheaper labor location, say India or even Iowa, the term used to describe the new lower cost department is “Center Of Excellence”.  The original name of New York’s deservedly world famous “Hospital for Special Surgery” was “Hospital For The Relief Of The Ruptured And Crippled”.

Another:

One of my personal favorites is “knowledge transfer” as in “China actively promotes “knowledge transfer,” a euphemism for stealing your technology.”

And another:

I used to work in the mortgage industry, and the company I worked for was in the process of merging with very similar organization. However, there was a problem that was making everyone nervous. Many of the employees from the other company did the exact same job that we did. There was significant overlap. But don’t worry! None of us were going to get fired! No firings here. That would have been bad for morale. Instead, we were told that management was looking into “eliminating unnecessary redundancies”. This cold and technical language struck me as perverse. These were fathers, mothers, husbands, and wives who were about to lose their jobs, not “redundancies” – as if they were unfeeling machines that could just be disposed of.

Another quick one. During my time with this company, we were under investigation for fraud by federal prosecutors. In the end, we agreed to pay a fine in exchange for an end to the investigation. This was reported to all employees in a positively spun email that stated we had “met all of our legal obligations”. It seems to me that when you have broken the law that’s the exact opposite of meeting your legal obligations. All we did was pay a fine to get the feds off our backs. This use of language irritates the hell out of me.

Another turns to parenting:

This might be more innocuous than most, but I’ve always gotten a kick out of the language of the Ferber Method, where parents teach babies how to “self-soothe”. This is of course, a polite way of saying let the baby cry.

This one’s a doozy:

You know the little safety talks the flight attendants always give at the beginning of flights? I was once privileged to hear one that included the phrase, “In the event of an unscheduled water landing …” Which of course begs the question, how many scheduled water landings does that airline make?

Dish alum Katie Zavadski recently reported on the bursting of the pharmacist bubble. Freddie sympathizes with students with “practical” degrees who end up unemployed:

This country graduates 350,000 business majors a year. The metrics for those degrees are generally awful. But nobody ever includes them in their arguments about impractical majors, despite those bad numbers. And if you’re some 19 year old, out to choose a career path, business sure sounds practical. So they graduate with those degrees and flood the market with identical resumes and nobody will hire them. Meanwhile, they lost the opportunity to explore fields that they might have enjoyed, that might have deepened the information acquisition and evaluation skills that would allow them to adapt to a whole host of jobs, and that might have provided a civic and moral education. All to satisfy a vision of practicality that has no connection to replicable, reliable economic advantage. …

Chasing a particular employment market, for an individual, can be a good or a bad bet. But treating skill chasing as a long-term economic solution on the societal level is insane. We’ve responded to unprecedented labor market swings, and to our incredible exposure to risk through our financial system, by dramatically narrowing our notion of what skills are valuable and who gets to be considered a practically educated person. That makes zero sense, particularly in a time when automation threatens to cut the legs out from more and more workers as we move forward. We are manically pursuing a far narrower vision of what human beings can call a vocation, treating any endeavor that does not involve numbers or digital technology as useless and old-fashioned, with nothing resembling a sound evidentiary basis for believing that this will deliver better labor outcomes. (The numbers-based fields are the ones that computers will be best equipped to take over!)

Tim Parks considers how the social function of novels has changed with the times:

How often have we been involved in conversations, at a party maybe, where four or five people ask what others think of this or that novel, only to find that no one else has read it? Even, or perhaps especially, among people who read a lot it is often difficult to find a single recently published book that we have all read. The conversation founders, literature fails to bring us together, no debate is provoked. Or to find a book to talk about we have turn to one of the blockbusters or media-hyped works of the day, something one almost feels authorized to talk about whether one has read it or not: Underworld, The Girl with the Dragon Tattoo, Interview with a Vampire, My Struggle. Regardless of quality, regardless even of sales, since [Karl Ove] Knausgaard’s are nowhere near on a level with the others, these are books that have been as it were chosen for the conversation, perhaps precisely because it’s often embarrassingly difficult to find a book we’ve all read to settle on.

He goes on to speculate why people gravitate toward some titles over others:

The serialized novel has been replaced by serialized television fiction that has become so successful at generating discussion that those of us who didn’t follow The Sopranos or The Wire were often made to feel left out. Meantime, in the bookshops, readers choose from literally thousands of recently published titles. In the countries of western Europe a good 50 percent of those books will come from abroad; so people’s reading is not focused on the society they live in and the stories read are often set elsewhere.

In 2011 when I ran a little survey in a Dutch bookshop on the kind of novels people were reading, younger readers in particular said they often chose to read popular foreign, particularly American or English, authors—Dan Brown or Ian McEwan or Philip Roth or Zadie Smith—so that they would have a common subject of conversation when meeting other young people during their summer travels. Their choices seemed random and were taken regardless of quality. Rather than a situation where people are naturally finding themselves reading the same thing and then talking about it, some readers are responding to celebrity in the hope that what they read will enable them to join an international conversation.

Earlier this week, Andrew Prokop observed that “Kansas independent Senate candidate Greg Orman is the sole candidate who’s actually risen in the estimate of his state’s voters in recent weeks”:

Sean Trende calls Orman’s opponent, Senator Pat Roberts, “the most vulnerable Republican incumbent”:

Orman does have real problems as a candidate, which, over the course of a full campaign, would probably drag him down. In particular, refusing to declare which party you will caucus with eventually invites people to fill in the blanks in their own minds as they focus in on the race. Given that most things in Orman’s past point toward him at least sympathizing with Democrats, it seems unlikely that people would conclude that he is a Republican. But in a short campaign, anything can happen.

Nate Cohn explains why the race is so important:

If Mr. Orman wins, it could deal a big blow to the G.O.P.’s overall chances. Think about it this way:

Well into August, most assumed that the Republicans had a 100 percent chance of winning Kansas. If the state were secure for the G.O.P., Leo, The Upshot’s Senate model, would give the Republicans a 78 percent chance of retaking the chamber. (Leo currently gives the Republicans a 61 percent chance of winning the Senate.)

Without Kansas, the Republicans would probably need to win both Alaska and Iowa. That’s certainly possible because the Republicans appear to lead in both states. Leo gives the Republicans only a 54 percent chance of taking the Senate if they lose Kansas, not much better than a coin flip.

But Harry Enten warns that Kansas voters are still making up their minds:

With Orman’s lead, why doesn’t the FiveThirtyEight model give him an even better chance of winning? The electorate in Kansas is unusually fluid for such a competitive race. We’re only a month into this campaign, and the race is still developing. We can see this by looking at the Marist poll. Only 43 percent of Kansas voters strongly supported their preferred candidate in Kansas. In Kansas’s gubernatorial race, it’s 55 percent. In Iowa’s Senate race, which Marist polled at the same time as the Kansas election, 57 percent of voters strongly supported their choice. In North Carolina’s Senate race, it’s 50 percent of voters.

The FiveThirtyEight model shows something similar. There are more voters unattached to major candidates in Kansas than in the average competitive race.

Cassidy provides background on Orman:

Orman, a private-equity investor with a net worth of somewhere between twenty million and eighty-six million dollars, according to campaign disclosures, looks, in some ways, like a moderate Republican along the lines of Bob Dole, the longtime senior senator from Kansas. Orman is a deficit hawk, he wants tax reform, and he’s very pro-business.

In other ways, though, he tilts towards the Democrats. He supports campaign-finance reform, abortion rights, (somewhat) stricter gun laws, and a pathway to citizenship for undocumented aliens. In 2008, he briefly entered the Kansas senate race as a Democrat, withdrawing before the party primary. “Let’s be honest—he’s a Democrat,” Senator John McCain said last month. “He walks like a duck and he quacks like a duck and he is a duck.”

Whether that’s true or not, Harry Reid and his colleagues would much prefer to deal with Orman rather than have McConnell running things.

The GOP is hoping to avoid one:

The message from Republican officials has been crystal clear for two years: The 2016 Republican primary cannot be another prolonged pummeling of the eventual nominee. Only one person ultimately benefited from that last time — Barack Obama — and Republicans know they can’t afford to send a hobbled nominee up against Hillary Clinton.

Jonathan Bernstein tells Republicans not to fret:

Republicans who worry that Clinton will lock up the Democratic nomination easily while Republicans continue fighting among themselves should remember what happened to Vice President Al Gore. He was nominated practically by acclamation and then proceeded to fall short of projections by a greater degree than any modern candidate. By contrast, his Republican opponent, George W. Bush, fought an extended battle against John McCain.

Philip Klein deems it “silly for RNC officials to think they can orchestrate a process that will protect the eventual nominee from serious scrutiny during the primary season, and to the extent that they’re able to do so, to think that a reduced level of scrutiny is automatically a good thing”:

The RNC has also decided to make its 2016 convention earlier — as early as June — so the nominee can begin to spend general election funds earlier than in 2012, when the convention took place in late August. But again, there is no reason to think this will improve matters. In 2004, John Kerry effectively clinched the Democratic nomination in early March, when his main rival, John Edwards, dropped out. The Democratic National Convention that nominated Kerry was held in July, while the GOP convention that year extended into September. After Kerry lost, the popular conclusion was that the early convention hurt Kerry because the Swift Boat story dominated news in August and fed right into the Republican convention, and the Kerry campaign never was able to adequately respond.

Larison is in favor of a long primary:

Despite a lot of what was said and written at the time, the 2008 contest on the Democratic side was generally very beneficial to their party. What matters is that the party in question has a large number of high quality candidates with which it can start the winnowing process. That is where the GOP may have more concerns.

It has often been taken for granted that the 2012 Republican field was exceptionally weak and the 2016 field will be much stronger, but it has never been clear that the likely 2016 candidates will be that impressive as a group once they are actually declared and running their campaigns. The more that they are scrutinized and their competence as candidates (or lack thereof) becomes better-known, the more that we’ll start to hear how overrated this field was all along. People are able to claim the higher quality of the 2016 field for the same reasons that many people assumed that the fantasy candidates of 2012 would have been much better than the ones that declared: it easy to claim that the non-candidates would be more appealing/competent/interesting because no one is thinking about their weaknesses yet, and there is no way to prove the assertion wrong until they declare. Once the 2016 field starts to take shape, we can expect another round of the same complaints about the “strong” candidates that stayed on the sidelines.