links for 2009-05-27

Legal scholars have observed that proponents of gay marriage have avoided taking the issue to federal court so far because of the dominance of conservative judges and justices on the federal bench after the eight-year tenure of President George W. Bush.

The U.S. Supreme Court has what usually results in a 5-4 majority against extending rights to gays by recognizing sexual orientation as a vulnerable class of citizens in need of protection.

And all but one of the 13 federal appeals circuits has a reliable conservative majority. Even the exception, the San Francisco-based U.S. 9th Circuit Court of Appeals, experienced a curtailing of its liberal orientation with Bush’s seven appointments.

Two of the nation's top litigators who opposed each other in the Bush v. Gore election challenge in 2000 have joined forces to seek federal court intervention in California's gay marriage controversy.

Theodore B. Olson and David Boies have filed a U.S. District Court lawsuit on behalf of two gay men and two gay women, arguing that the California constitutional amendment eliminating the right of gay couples to marry violates the U.S. constitutional guarantee of equal protection and due process.

Olson said today that he hopes the case will wind up before the U.S. Supreme Court.

The lawsuit seeks a preliminary injunction against California's Proposition 8 until the case is resolved.

This morning's state Supreme Court decision to uphold the Prop 8 gay marriage ban has one gay rights group thinking about the next ballot box battle. The question: When should gay marriage supporters put their own initiative up for a vote?

Equality California, which says it's the largest lesbian, gay, bisexual, transgender-rights advocacy organization in the state, has concluded that sooner is better than later. Here's why, according to a release the group put out this morning:

Momentum. The issue is hot now and pro-gay marriage volunteers are ready to go.

Top of the ticket. The leading Democratic contenders for governor and other statewide offices in 2010 support overturning Prop 8.

Vying for national attention. Wait and risk competing gay marriage initiatives around the country that could split supporters' money. And a 2012 measure would have to compete for campaign dollars with President Barack Obama's likely re-election run.

At a news conference in the state capital, leaders of the Yes on 8 campaign, ProtectMarriage.com, applauded the court’s ruling but said they would continue with multimillion-dollar public education and a political action effort in anticipation of a new campaign by the measure’s opponents to overturn it with another initiative.

“We know that they will be back and that they will attempt to alter the constitution in their favor, and that has not been successful by the people in any state thus far,” said campaign Chairman Ron Prentice.

CBS 2 HD has learned that former NYPD Commissioner Bernard Kerik has been indicted by a federal grand jury in Washington on charges of making false statements to White House officials during his vetting for the position of Secretary of the U.S. Department of Homeland Security.
According to the indictment, Kerik, in 1999 and 2000 when he was NYPD commissioner, spoke to city regulators on behalf of contractors who were seeking one or more permits to do business in and with the city.

North Korea defied international condemnation of its latest nuclear test by firing two short-range missiles off its east coast on Tuesday and major powers considered tougher action against the isolated communist state.

With tension in the region high, South Korea said it would join a U.S.-led initiative to intercept ships suspected of carrying weapons of mass destruction, something Pyongyang has warned it would consider a declaration of war.

Sotomayor is just as liberal as Souter on social issues like affirmative action and abortion, but far more liberal even than Souter on economic issues, such as punitive damages, preemption, and employment law. The Supreme Court, including Justice Souter, unanimously reversed her decision in the Dabit case, where she allowed lawsuits that were preempted by a federal law (SLUSA).

Business will likely lose billions of dollars over time as a result of her replacing Souter. That probably won’t bother Obama, given that “Obama has regretted that the Supreme Court ‘didn’t break free’ from legal constraints to bring about ‘redistribution of wealth.’”

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

The California Supreme Court on Amendment vs. Revision:

Under the California Constitution, the initiative can be used for constitutional "amendments" but not constitutional "revisions"; see this post for more, including the constitutional text that strongly suggests this. Here's the California Supreme Court's explanation for why Prop. 8 is a constitutionally permissible "amendment" and not an impermissible "revision" (all emphases in original):

The danger is that Twitter will keep reporters off the streets and in front of their screens, that it will further skew journalism toward seeking out, listening to and serving the young, the hip, the technically sophisticated, the well-off — in short, the better-connected. The people who aren't being heard now aren't sending out tweets.

After Obama assumed office in January, whatever hesitation that existed in North Korea's policy-making circles regarding the likely response of U.S. administration has disappeared, and its leadership now feels it can defy the U.S. and the international community with impunity.

A series of actions taken by the Obama administration have created an impression in Iran, the "Af-Pak" region, China and North Korea that Obama does not have the political will to retaliate decisively to acts that are detrimental to U.S. interests, and to international peace and security.

During his remarks this morning, President Obama pointed out that Sotomayor was appointed as a district court judge in 1992 by Republican George H. W. Bush. But a friend on Capitol Hill notes this bipartisan talking-point is empty. The following 1992 New York Law Journal article explains that Sotomayor was nominated as part of a compromise in which Democratic Senator Moynihan was allowed to recommend judges for two of the seven vacancies:

Pamela S. Karlan is a champion of gay rights, criminal defendants’ rights and voting rights. She is considered brilliant, outspoken and, in her own words, “sort of snarky.” To liberal supporters, she is an Antonin Scalia for the left.

Iran's President Mahmoud Ahmadinejad on Monday rejected a Western proposal for it to "freeze" its nuclear work in return for no new sanctions and ruled out any talks with major powers on the issue.

The comments by the conservative president, who is seeking a second term in a June 12 election, are likely to further disappoint the U.S. administration of President Barack Obama, which is seeking to engage Iran diplomatically.

Iran has sent six warships to international waters, including the Gulf of Aden, to show its ability to confront any foreign threats, its naval commander said on Monday.

Admiral Habibollah Sayyari, quoted by the ISNA news agency, made the announcement five days after Iran said it test-fired a surface-to-surface missile with a range of 2,000 km (1,200 miles), putting Israel and U.S. bases in the area within reach.

Iran said on May 14 it had sent two warships to the Gulf of Aden to protect oil tankers from the world's fifth-largest crude exporter against attacks by pirates but ISNA did not make clear whether they were among the six Sayyari talked about.

Iranian waters stretch along the Gulf, the Strait of Hormuz and the Sea of Oman. Iran has threatened to block the Strait of Hormuz, through which about 40 percent of the world's traded oil is shipped, if it were attacked over its nuclear programme.