Two Judges — Andrew Cohen at The Atlantic profiles the two GOP-appointed judges whose rulings brought DOMA and Prop 8 to the doors of the Supreme Court.
I don’t know about you, but for me, the run-up to next week’s Supreme Court same-sex marriage arguments now has the feel of an endless Super Bowl pregame show. The analysis, the speculation, the sidebars, the color, the posturing, the winks and nods to insiders, the profiles — it just goes on and on, when all anyone really wants is for the arguments to occur, and to be done with, and for the justices to render their decisions the last week of June. That, and for Beyonce to sing the anthem when the justices enter the chamber Tuesday at 10 a.m.
Supporters of same-sex marriage have virtually all the legal, political and cultural momentum going into the arguments over California’s Proposition 8 (Tuesday) and the federal Defense of Marriage Act (Wednesday). Justice Anthony Kennedy, who will almost certainly determine the outcome of both cases, therefore has plenty of cover to do what many suspect he wants to do, which is to protect same-sex couples in whole or in part from the discrimination inherent in both the state initiative and the federal statute. It would be very surprising if he did not so rule.
So on the eve of the start of what promises to be a dramatic week in the history of the Court, and also in the history of the gay rights movement in America, and because I cannot think of anything else to mention that someone smarter than me hasn’t already covered, I just want to remind everyone waiting for the sanctification to begin that it was two Republican-appointed federal trial judges, at opposite ends of the country, who got all of this rolling three years ago with rulings that vitiated both the legal and factual rationales behind these dubious measures.
Judge Joseph Tauro
On the East Coast, it was U.S. District Judge Joseph Tauro, the Nixon appointee, the revered son of a revered Massachusetts Supreme Court justice, who declared in July 2010 that “no fairly conceivable set of facts” could justify the classification of marriage contained in Section 3 of the Defense of Marriage Act. If this section of the statute really is doomed, it was this ruling, from a judge who now has served 41 years on the bench, that marked the beginning of the end of the heart of the law.
Judge Vaughn Walker
On the West Coast, it was the now-retired U.S. District Judge Vaughn Walker, an appointee of George H.W. Bush, who first struck down Proposition 8 — and also exposed the paucity of the arguments once made on its behalf. At one point during the Proposition 8 trial, without a trace of irony, Judge Walker asked Charles Cooper, the lead attorney opposed to same-sex marriage: “Seven million Californians, 70 judges, and this long history that you described. Why did you present but one witness on the subject?” Cooper had no good answer. He still doesn’t.
Although both men have played an enormous role in shaping the legal and political history of these two cases, and thus the history of same-sex marriage itself, it is unlikely that the work of either will be identified (much less discussed) during oral arguments next week. Unfortunately, there is only one former trial judge on the current Court — Justice Sonia Sotomayor, who presided in New York. The rest of the justices rarely express interest in the trial record, especially where, as here, the core questions are ones of constitutional law.
But before we all move on to whatever comes next for same-sex marriage in America, we ought to pause to remember what has come before. Two Republican judges, two senior-status members of the federal judiciary, directly confronted one of the most divisive social issues of our time. They issued clear and direct rulings that swept away one myth after another about same-sex marriage and the legislative and societal rationales against it. And, in doing so, they gave constitutional cover to the executive branch to alter its course.
The Supreme Court may disagree with the assessments of Judge Tauro and Judge Walker — at least three justices in Washington almost certainly will — but that won’t change what we already have seen with our own eyes. Judge Tauro explained why the DOMA is indefensible. Judge Walker explained why Proposition 8 is unjust and unequal. Each in his own way did, in other words, precisely what we hope and expect our life-tenured federal judges to do when the whims and caprices of the majority are turned loose upon a distinct and vulnerable minority.
Final Judgment — George Packer of The New Yorker on Iraq.
The week of the invasion, I was in Ivory Coast, on assignment for this magazine to report on a civil war. In fact, I was travelling through rebel-held territory near the Liberian border with Mike Kamber, whom I had just met, and with whom I spent many hours driving over dirt roads through hair-raising checkpoints guarded by drunk or stoned or just zoned-out teen-agers with Kalashnikovs. But we kept discussing the other war, the one that the rest of the world was waiting for. I think we both were anxious to finish up our reporting in West Africa and head to the Middle East. An overwhelming tide of history was about to wash over Iraq.
The decade between that fateful week and the present moment has telescoped, compressed down to a single, terrible judgment: the war was a disaster for Iraq and the U.S. alike. It was conceived in deceit and born in hubris, a historic folly that took the American eye off Al Qaeda and the Taliban, while shattering Iraq into a million bloody pieces. When the last American troops departed a little over a year ago, there was no sense on this side of triumph or satisfaction–nothing but sadness and relief. Iraq, meanwhile, remains a dramatically violent country. Its politics are oriented toward Iran and the broader Shiite side of a looming regional war. After two trillion dollars, thousands of American lives, and over a hundred thousand Iraqi lives, there is so little U.S. influence that we can’t get the government of Iraq to interdict Iranian weapons shipped across its territory to arm the soldiers of Bashar al-Assad in Syria. Iraq has rejected the organ transplant and gone its own way. I imagine that there are far fewer American traces left in Baghdad than there were in Saigon after 1975.
No Safe Spaces — Mary Elizabeth Williams in Salon on how women aren’t safe in social media.
The wheels of justice turn slowly – unless you’re talking about the court of social media. There, the past few days have been an object lesson in instant payback – mostly aimed at females who’ve had the audacity to speak up.
The week started with the arrests of two Steubenville girls after the guilty verdicts in the rape case against two local teenage football players. As the Cleveland Plain Dealer explained, “The 16-year-old is charged with one misdemeanor count of aggravated menacing for threatening the life of the victim on Twitter. The 15-year-old is charged with one misdemeanor count of menacing for threatening bodily harm to the victim on Facebook.” The threats against the victim were merely the latest ugly attacks in a case that was, from its beginning, about the devastating power of online community’s hostility toward girls and women.
Then, in a remarkably familiar-feeling case in Connecticut, a 13-year-old girl who’d accused two local football players of sexual assault found herself the target of online harassment. Writing in the Register Citizen, Jessica Glenza chronicled the outpouring of anger toward the young “whore” whose “snitching” was “ruining the lives” of the boys involved. As one observer mused on Twitter, “I wanna know why there’s no punishment for young hoes.”
And then, for the grand finale capping off the week, there was the crapstorm unleashed after Adria Richards tweeted a photograph of the men she claimed were making explicit and offensive comments during a recent conference. The tweet set off an explosive chain of overreaction, one that led to the firing of a PlayHaven developer and then, inevitably, an outpouring of wrath aimed at Richards.
At its best, social media illuminates aggression and injustice – Steubenville surely would have played out very differently were it not for the loathsome virtual trail the participants left in their wake. But the mob mentality of “punish the bitch,” a pattern that shows up again and again and again with sickening predictability, is real and it’s got to change. This week, the bullies, feeling offended about rape and sexism, went on the attack. And the bullies won.
Doonesbury — What sells.