Kevin Drum

Gay Marriage and Justice Kennedy

| Thu Aug. 5, 2010 1:53 AM EDT

Dahlia Lithwick says Judge Vaughn Walker's ruling today in the Proposition 8 case was a triumph of "science, methodology, and hard work." Personally, I would have preferred an opinion that was based a little less on a mountain of science and methodology and a little more on a mountain of compelling legal doctrine, since that's what's going to matter when this case gets to the Supreme Court. Still, Lithwick does point out something else interesting about Walker's decision: he relies a lot on arguments that seem designed to appeal to Justice Anthony Kennedy:

I count — in his opinion today — seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.

Kennedy, of course, might possibly be the swing justice when this case gets to the Supreme Court, so this could be a pretty effective tactic. Maybe that mountain of facts has an audience after all.

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A Chinese Bump in the Road

| Wed Aug. 4, 2010 9:09 PM EDT

This doesn't sound good:

China’s banking regulator told lenders last month to conduct a new round of stress tests to gauge the impact of residential property prices falling as much as 60 percent in the hardest-hit markets, a person with knowledge of the matter said....Previous stress tests carried out in the past year assumed home-price declines of as much as 30 percent.

The tougher assumption may underscore concern that last year’s record $1.4 trillion of new loans fueled a property bubble that could lead to a surge in delinquent debts. Regulators have tightened real-estate lending and cracked down on speculation since mid-April, after residential real estate prices soared 68 percent in the first quarter from a year earlier.

This comes via Ryan Avent, who says:

Whatever it means for China, it's unlikely to be good for the rest of the world. China is likely to try and innoculate itself against a housing-driven slowdown by turning up the support for exporters while the financial fall-out settles. If it does, it will siphon demand away from other economies. But if it doesn't, the housing hit to China's economy will be more severe, which will have much the same effect — a reduction in the demand boost from China to the rest of the world.

It may just be a bump in the road to global recovery, but every bump is a big one these days.

Bumps make me very, very nervous these days.

Prop 8 Unconstitutional — For Now

| Wed Aug. 4, 2010 6:18 PM EDT

Judge Vaughn Walker has released his long-awaited opinion on the constitutionality of California's Proposition 8, which bans gay marriage: in a nutshell, it's not. There's no rational basis for prohibiting same-sex marriage, he ruled, and therefore it violates both the due process and equal protection clauses of the 14th amendment of the U.S. constitution. The full opinion is here.

But as we all know, his ruling per se doesn't matter. It will be appealed to the Ninth Circuit Court shortly, and after that it's sure to be appealed to the Supreme Court. What's more, a stay is likely in the meantime. So the question is, how compelling is his opinion? Is it likely to sway members of either the circuit or supreme courts?

I am nothing close to a legal expert, so feel free to ignore what follows even more than usual. But I have a feeling the answer is no. The problem is that Walker's ruling relies very, very heavily on the factual evidence provided by each side's expert witnesses. But he obviously didn't think much of the witnesses called by the defense:

[P]roponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.

....Blankenhorn offered opinions on the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage for same-sex couples. None of Blankenhorn’s opinions is reliable....[T]he court finds that Miller’s opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence.

So the proponents' expert witnesses were, to put it bluntly, just a couple of hacks. Conversely, Walker says, he was very impressed with the plaintiff's expert witnesses. Then, following a list of 80 findings of fact, he ruled that prohibition of same-sex marriage was plainly unconstitutional:

To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted “in our Nation’s history, legal traditions, and practices.”....Never has the state inquired into procreative capacity or intent before issuing a marriage license....Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre....The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals....The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

Italics mine. This strikes me as an Achilles heel in his opinion, since it suggests that if you think genders still have any distinct role in society at all, then there's a rational basis for prohibiting same-sex marriage. I'm guessing there are at least five Supreme Court judges who think that. But Walker doesn't: "The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational." He then goes on to rule not only that the plaintiffs made a better case, but that it's hardly even a debatable case:

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest. [Italics mine.] One example of a legitimate state interest in not issuing marriage licenses to a particular group might be a scarcity of marriage licenses or county officials to issue them. But marriage licenses in California are not a limited commodity, and the existence of 18,000 same-sex married couples in California shows that the state has the resources to allow both same-sex and opposite-sex couples to wed.

This is....a bit glib, no? Obviously no one is suggesting that California lacks the printing capacity to produce more marriage licenses. And then the final paragraph:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Needless to say, I agree with every word of this. It's an exhilarating and heartening ruling and I hope the Ninth Circuit Court and the Supreme Court uphold it unanimously. But at the appellate level, the expert opinions offered in the case aren't going to be especially relevant, and that's almost entirely what Vaughn based his ruling on. What's more, Vaughn went even further, clearly displaying his contempt both for the defense's witnesses and for its decision not to bother contesting the facts, and that contempt might come back to bite him. In the end, he essentially ruled that bans on same-sex marriage are nothing more than an "artifact" of history, and I have severe doubts that this is going to withstand scrutiny. At the Supreme Court level, the briefing attorneys won't be limited in their presentation of the law, and all they have to do is show some rational reason for existing bans. It doesn't have to be a great reason, and it doesn't have to be a reason that anyone mentioned at the district level, just one that's not plainly looney. I'm not sure that Vaughn was persuasive in ruling that no such reason exists.

I hope I'm all wet about this. Obviously district courts rule on facts and appellate courts rule on the law, so maybe I'm making too much of this. But my guess is that none of the expert testimony in this case is going to make a whit of difference at the Supreme Court, and without that it's not clear the ruling can be sustained. We'll see.

Defunding Healthcare

| Wed Aug. 4, 2010 5:01 PM EDT

Apparently the latest Republican brainstorm on healthcare reform — assuming they win control of the House in November — is to pick out bits and pieces of the legislation and refuse to fund them. Austin Frakt is worried:

Make no mistake, repeal by purse strings could create a mess. The law has many moving parts that act together to create a sensible, complete whole. And implementing a piece of legislation as complex as the ACA requires fully funding the agencies that oversee it. So, this strikes me as the most politically viable, serious attack on health reform.

....The combination of “savings” created by failing to fund implementation and tax cuts is likely to appeal to the Republican base. Keep in mind that the ACA does very little for the broad middle-class of voters who are covered in the large-group market. In these hard economic times, such voters may prefer some money in their pockets than additional spending on a program for which they expect little benefit. (Of course losing one’s job jeopardizes one’s insurance so the ACA really does add a meaningful layer of protection for all Americans.)

So, I worry about this. The legislation may be Democratic sausage, but I prefer it to the Swiss cheese the Republicans intend to dish up.

I wonder how this plays out politically? Even a landslide would only give the GOP a small majority, maybe five or ten seats, which means they'd have to keep party discipline almost 100% waterproof in order to do this. Could they pull that off?

Maybe. But minority parties have a much bigger incentive to stick together than majority parties do: the cost is zero and the PR is good. But what happens when they're running things? If Democrats can find even a dozen Republicans who aren't quite willing to make a hash out of healthcare for real — as opposed to just talking about it — then funding is safe. And they might. Talking smack is one thing, but there are still a few non-bomb-throwers on the GOP side who might flinch at voting for the real-world chaos this would produce.

Alternatively, this will all be moot because America will step back from the brink on November 2nd and have second thoughts about turning the country over to the lunacies of the tea party. For now, this is still my guess. Dems will lose 30-35 seats and maintain very narrow control of the House. I can't say I'm willing to put any money on this prediction, though.

14th Amendment Crackpottery

| Wed Aug. 4, 2010 2:12 PM EDT

The folks at First Read are gobsmacked:

Out of touch? By now, you've probably heard about the GOP push — embraced by Mitch McConnell, Jon Kyl, and even John McCain and Lindsey Graham — to hold Senate hearings into whether the 14th Amendment should be amended. At issue: the 14th Amendment granting automatic citizenship rights to anyone born in the United States, even the offspring of illegal immigrants. Just askin, but do these Republicans want to be tied to wanting to change this historic, post-Civil War amendment, which made former slaves and their children full citizens in this country? At a time of 10% unemployment and two wars, do politicians really want to debate a Constitutional Amendment from the 19th century? For the GOP, does this help them with their problem at wooing non-white votes? This seems a tad tone deaf; it may be popular with folks who listen to talk radio or watch evening infotainment debate shows but really?

As a friend says, "Yes, Really." But look: there's no mystery here. Republicans know perfectly well this isn't going anywhere, but they also know that symbolic issues like this are great for firing up their base. People like me scratch our chins and wonder why their base falls for this schtick so regularly when Republicans never follow up on this stuff, but that's not the point. The point make a point. They're just signalling to their base that their hearts are in the same place and their values are aligned. And that's good politics.

Democrats, as critics like Drew Westen routinely point out, aren't as good at this. This might have something to do with the liberal temperament, but I sort of doubt it. More likely, it's just that the liberal base is smaller. When Republicans pander to conservative hot buttons, they're pandering to something like two-thirds of the party. When Democrats do it they're pandering to about a third of the party. So the arithmetic is simple: for Republicans this kind of pandering is a winner, probably producing more votes than it loses. Among Democrats it's just the opposite, so they don't do it as much. There's too much risk of offending large numbers of independents, as well as the (still) fairly significant number of conservative Democrats.

As for why the press continues to treat this stuff seriously, I think this is the reason: they know perfectly well that this is just political puffery, but they figure that all's fair in love and politics. Who are they to tell the parties how to pander to their own base? Quite the vicious circle, no?

Facebook Bleg

| Wed Aug. 4, 2010 1:19 PM EDT

This is a small abuse of the blog for purposes of personal mental hygeine, but.....

As part of its campaign to take over the world, Facebook has persuaded more and more sites to install its social networking widget. Unfortunately, beginning on Saturday, it started driving my browser nuts. I finally figured out how to uninstall it on the Washington Post front page, but since then I've noticed half a dozen other sites using it too. Every one of them sends my browser into overdrive, refreshing manically two or three times a second as it tries to figure out what the latest news from all my Facebook buddies is.

Of course, it's only a problem on Opera. Firefox and Explorer work fine. Sigh. Which means no one cares. But maybe someone does! Anyone else having this problem? After a bit of trial and error I've blocked ** and this seems to mostly fix the problem, but I know deep in my heart that it's going to end up causing some kind of unforeseen massive system failure in the future. It always does. Anyone have any advice about how to fix this for real?

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Eating Our Seed Corn

| Wed Aug. 4, 2010 12:28 PM EDT

And now, combining yesterday's post about the value of preschool with today's post about federal aid to strapped state budgets, here's the latest news on budget cuts aimed at the worst possible place:

States are slashing nearly $350 million from their pre-K programs by next year and more cuts are likely on the horizon once federal stimulus money dries up, according to the National Institute for Early Education Research at Rutgers University. The reductions mean fewer slots for children, teacher layoffs and even fewer services for needy families who can't afford high-quality private preschool programs.

....Wealthier parents can afford to send their kids to private preschools, but children from poorer families will likely languish in lower-quality childcare that doesn't prepare them for kindergarten, experts said.

....Marci Young, director of the Pew Center on the States' Pre-K Now program, said prekindergarten is the key to helping the Obama administration achieve one of its main goals — improving persistently failing schools. "When you're thinking about turning around low performing schools or making sure you're helping close the achievement gap ... you've got to start in the early years," said Young.

She pointed to studies that show states see a $7 return for every $1 they invest in early education because children who attend prekindergarten are more likely to not need remedial education, to graduate from high school, to go to college and to have higher-paying jobs that produce more taxes.

Sounds like socialism to me! Here in America we prefer nature red in tooth and claw. For poor people, anyway.

Arguing With Conservatives

| Wed Aug. 4, 2010 12:12 PM EDT

Who should liberals be arguing with right now? Option A: the smartest, freshest thinkers on the other side. That's who you should test your ideas against. Option B: actual influential conservatives, since they're the ones who control Congress and determine what happens in the real world.

Smart conservatives think the answer is Option A. And I don't blame them! Hell, I get bored with shooting ducks in a barrel anyway, and it would be great to have more meaningful conversations, stretch our minds a bit, and maybe even raise the profile of the non-Tea Party wing of modern conservatism in the process. The problem is that the non-Tea Party wing is pretty damn small these days, which means that conversations like this pretty quickly take on an air of la-la land. Take this exchange between Ezra Klein, for the left, and Reihan Salam for the NTP right, about a supposed "consensus" among Republicans that they're in favor of federal aid to states as long as states are willing to reform their budgeting processes. Here's Ezra:

When asked to name some legislation, Reihan didn't come up with much. "That is the basic idea behind Sen. Scott Brown’s Fiscally Responsible Relief for Our States Act," Reihan said. But Brown's proposal — a proposal from one of the most moderate Republicans who is representing one of the most liberal states in the union — doesn't have any co-sponsors, so it's hard to see how it represents a consensus....Moreover, making aid conditional on budget reform is not the basic idea behind Brown's bill. Just ask Brown.

....The basic idea behind Brown's bill is that state aid should be funded using preexisting stimulus dollars. That's what he talks about in the video. He doesn't say anything about conditions. And to double-check, I read the bill. Still nothing.

It's possible I'm missing something in the legislative language, but from what I can see, Brown's bill doesn't make aid conditional on state reforms, and it doesn't have Republican co-sponsors. It provides no evidence for the contention that Republicans would happily partner with Democrats on state aid, if only Democrats would embrace more stringent conditions.

My guess is that making aid conditional on states developing fiscally sound long-term budgets is unworkable. It's too hard to define what "sound" means, it would take too long to do it, and it's next to impossible to guarantee that states would stick to their bargains once the crisis has passed. But it would be an interesting discussion. Way more interesting than, say, commenting on Sean Hannity's latest attack on the New Black Panthers.

Unfortunately, you'd have to be happy leading an essentially monk-like existence to do this on a regular basis. In the real world Republicans are mostly yammering about the Ground Zero mosque and other assorted idiocies, not developing creative proposals that address actual problems. Even Paul Ryan's "Roadmap" proposal, which I don't think is nearly as smart as consensus has it, can't get any real support in the Republican caucus. They're too busy pretending that they're going to repeal healthcare reform or get rid of the 14th amendment. Bottom line: I don't demand a huge conservative groundswell before I start blogging about some of these more moderate proposals, but there's got to be some support for them. Otherwise this is just a dorm room bull session.

Flying Windmills

| Wed Aug. 4, 2010 1:08 AM EDT

OK, let's end the day with a bit of (potentially) good news: flying turbines. The basic idea is simple: the wind gets stronger the higher up you are, so why not build flying turbines that hover a mile or two above the earth and crank out the megawatts? Gar Lipow looks into the future and explains:

Other factors being equal, the power available from wind is the cube of its speed....A turbine at ten kilometers can generate eight or more times the energy of a turbine at 100 meters. Estimated high altitude energy potential is about 100 times all energy human civilization currently consumes.

....Kites have been used for millennia, balloons for centuries, motorized planes and helicopters for more than 100 years. Put turbines on an automated kite, plane, balloon or helicopter with no human pilot. Run a tether to transmit the electricity to the ground, and in (in many cases) to provide power for the initial launch. The result is a flying energy generator....This is not merely an idea. A number of companies have working prototypes. It has been proven possible, though not yet practical.

The rest of his piece includes a long Q&A that answers most of the obvious questions (Is it safe? What kind of tether do you need? Would it interfere with airplanes?). The video above shows one concept. I would have used this one instead, which looks cooler, but apparently the folks at Joby Energy don't really want anyone embedding their videos. In any case, I for one look forward to our jetstream-powered future.

The Secret Code That Controls Your Destiny

| Tue Aug. 3, 2010 11:34 PM EDT

In David Corn's piece this morning, Rep. Bob Inglis told a story about meeting up with some constituents who earnestly regaled him about the sinister origins of the number on the back of your Social Security card. "That number indicates the bank that bought you when you were born based on a projection of your life's earnings," they told him.

Good times. But it got me wondering: what number on the back of your Social Security card? I haven't owned a physical Social Security card for decades, so I couldn't check. Luckily, Marian is more conscientious than I am and managed to dig hers up. Sure enough, there's a number on the back. But what's it for?

To my disappointment, a Google search didn't turn up much. However, I did run across a blog post that recounted a few interesting tidbits about Social Security numbers. Interesting, but not what I was looking for. Pay dirt was in the comments. I figure we could all use a laugh now and then, so here it is: the meaning of the numbers. Enjoy.

F. Howles: Here’s one to research. What’s the red numbers on the back of a social security card for?

Captian Jack Sparrow: Does anyone know what those red numbers on the back are for. I am very curious as well.

freedomfighter: about that serial or whatever on the back…im researching it but from what I’ve gathered that is a bank routing number linking you as property of some royalty british bank.

golbguru: Do you have a reference for this statement: “but from what I've gathered that is a bank routing number linking you as property of some royalty british bank.” ? As far as I am concerned that’s total BS.

freedomfighter2: I’m actually looking for documentation but all I remember is hearing about it in some google video…not the most reassuring evidence, but for now until im disproven I suggest leaving it as an option…when i come across the video ill post it.

Puzzled: I’m still trying to find out more about the numbers on the back of Social Security cards. My friend’s card has red numbers. Mine are of another color and I don’t know why.

Puzzled: By the way, about that thing that you think is BS, with your SSN being tied to some royal british bank is in fact completely true. Your SSN is tied to Social Security Administration which is tied directly to the Federal Reserve System, which is privately owned by stock-holding banks, one of which is Barclay’s, a Royal Britich Bank, as well as several American banks, which are also British owned and controlled.

Beaver: I heard an urban legend that the red numbers on the back of the social security card are your EIN, employer ID number. If you’re just a regular John Doe citizen, you’re an employee of the US Corporation, and are in fact yourself a corporation. That’s why you use the number on the front, your employee ID number (SSN). Supposedly, if you have a replacement card issued to you, the number on the back will come in red ink, and you can use it to declare that you’re a soveriegn American and not a citizen OF the United States....If you use the number on the back, the “tracking number for blank cards” printed in red ink, you’re claiming ownership of the card and the chattel property it represents. You are the chattel property. If you don’t, they “own” you. You’re their chattel property, and you’re being used as collateral on the bankruptcy the US Govt. filed to the international banking houses back in the 1930’s, the time of the great depression.

ChelC: came upon this when someone referred me here:

They told me to enter the year of my birth, followed by the red number. Select Mutual Fund and Fund number. You will find out what yours is if you have one. So, if I was born in 76, I would enter 76xxxxxxxx.

Fed Up: I called Social Security headquarters asking about this. The representative had the following four answers: 1) “No idea, hold on.” 2) “Hold on, I have never heard of that.” 3) “I am still checking, I have never had this question before.” And finally 4) “It refers to when the card was issued. It is a reference number, having nothing to do with your SS #.”

RON: The # on the back of your ssn card is “Priority Exemption Acc. #” The letter represents the Federal Reserve Bank that hold the bond the 8 digits is the acc. #

chandra: Is there a way to research the federal reserve bank that corresponds with the letter???

a good samaritan: There’s ten bonds associated with one SSN at the Fed. The number on the back of the card is only one of ten numbers which identifies the bond it’s associated with. The bond, which is held by the Fed, has an account associated with it. This is the account talked about called “Private Exemption”. The only way to take control of these bonds/accounts is through the Depository Trust Company.

Strobel: Looking for more information on the red numbers on the back of the SS card. A guy I met told me he pays his monthly bills using that number. It is supposedly a bank routing number attached to the British bank some people here have mentioned. Does anyone have any more specifics on this?

No One: well to answer your questions about the red numbers on the back of your cards when i was working for the government i learned that during the great depression the government started investing in the world market in our names and using our ssn #’s so that if that ever happened again they could pay out the unemployed.

Falcon: So far in my research I have heard many different theories on how to go about capturing your STRAWMAN, charging up your treasury account, and discharging your debt. The problem is, they are all theories!

Please beware my friends of people who want to charge you money for this information. I paid out a pretty penny so far and the information I received is conflicting. I have some friends that are working with a “Patriot” who has gladdly accepted many thousands of dollars from them as a fee to help them and so far all that has happened is they got there bank accounts closed for righting fraudelent checks. Nobody has been arrested though so that is interesting but I am following there progress closely.

At this point, as you can see, it's actually getting kind of pathetic. These stories always seem pretty silly, but there are plenty of bottom feeders who prey on the kind of people who believe this stuff.

But of course, I don't want to leave you without the answer. What is the number on the back of your Social Security card? Here's the answer:

FedWorker: The numbers on the back are inventory control. Each paper blank now has a number and must be accounted for

And a bit more detail from a speech by Donald Walton, a U.S. bankruptcy trustee, on eight "key signs that can identify a subject social security card as either legitimate or fraudulent." Here's #7:

7. Sequential Control Number. On the rear of a legitimate card there is a sequential control number. The control number is a combination of alpha and numeric that bears no relation to the actual social security number on the card. However, the computer records of the Social Security Administration should show a correlation between the control number and the social security number and name on the card.

Of course, he would say that, wouldn't he? He's probably a bankruptcy trustee for the Bilderbergers.