The high point of yesterday’s hearings was when Elena Kagan read the Congressional justification of the Defense of Marriage Act. “Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality.” Ouch! But Paul Clement was quick on his feet and noted that, yes, it does say that, but that the court really shouldn’t look at that statement because it was just what some minority of congress members thought. Is that true?

Let me put this in three different ways. Of course not! Of course not! Of course not! Is Clement fucking kidding me? All these kinds of anti-gay laws are enacted because those enacting them hate gays. It is as simple as that. And it was repugnant listening to his song and dance about how DOMA was just meant to clarify the law. Look: there are two ways to clarify the law: accept same sex marriage or reject it. DOMA not only rejected it on the state level (red states don’t have to recognize the satanic blue state same sex marriage laws), it rejected it on the federal level. All together now: because they hated gays!

One thing that I most hate about conservatives is how they are never held accountable for their vile policy positions. Jonathan Chait wrote about that this morning, Next Stage for Gay Rights: Conservative Amnesia. His anger in the article is that conservatives are already trying to rewrite their positions on gay rights, even before they’ve changed their positions on gay rights. Rob Portman does not a movement make.

But as the hearing yesterday shows: rewriting is not valid. Republicans have been horrible on issues related to gay rights. As I pointed out yesterday, it’s all about their Christian Intolerance. Of course, much the same thing can be said of Democrats. But all the liberalization of views toward gay rights that we’ve seen over the past decade or so? That’s almost entirely Democrats. Republicans (especially politicians) are not much more evolved on the subject than they were before.

Jonathan Chait wrote a brilliant article last year about how conservatives were trying to rewrite their history of racism, The Conservative Fantasy History of Civil Rights. It is interesting how they’ve attempted to do this. They just pretend that the second half of the twentieth century never happened. Yep: the Democratic Party was very racist in the 19th century! The Republicans ended slavery! Therefore: Democrats are racists today and Republicans are the defenders of minority rights!

E. J. Graff wrote a really good article over at The American Prospect that gets right to the heart of what is going on, Falling Through the Looking Glass. She notes that we are looking at two worlds at once: the past with all its hatred of gays and the future where no one (outside the religious extremists) will care. But here’s the thing: she sees these things in the same people. Because the people against gay rights will no longer admit (in polite company anyway) that they hate the gays. In fact, most of the time, they’re just looking out for them!

Twenty years from now, all politicians will be in favor of gay rights. It won’t be a partisan issue. Even the people who voted for DOMA will claim they were always for gay rights. It is just that they wanted to clarify what marriage meant! But I’m not inclined to let them get away with it. We will never go back. Allowing bigots to save face does not have to be part of the deal.

Matt Yglesias posted something this morning about research by Linda Bilmes that shows that the total cost of of the Iraq and Afghanistan wars is up to $6 trillion and that we haven’t even paid for most of it yet. That’s not exactly news: five years ago, Bilmes and Joseph Stiglitz wrote The Three Trillion Dollar War about the Iraq War alone. But it got me think about these wars in a slightly different way: what are the opportunity and other hidden costs of these wars?

I don’t think that either of these wars made us safer. Let’s look back on 9/11 itself. Osama bin Laden’s main excuse for going to war with the United States was our military bases in Saudi Arabia. Guess what? Bin Laden won! In 2003, we dismantled our bases and removed all of our troops. That’s something to think about for the frat boys dancing in the streets over bin Laden’s death: a little backwater terrorist group got the United States to make a major policy change.

After 9/11, the only bright spot I could imagine was that all of the worldwide goodwill that we received could have been used to finally force a two-state solution to the Israel-Palestine problem. I really think there would have been enough pressure to get that done. Of course, we didn’t even try. And despite what all of the supposed defenders of Israel claim, this conflict makes Israel less safe because it provides a bright example to those who wish to claim that Israel is invalid. I believe if we had solved that problem we would have sent the entire region on a new (and better) trajectory.

So there’s that. I can’t even imagine how many trillions of dollars that would have been worth. But instead of working to make the Middle East better, we did all we could to make it worse. Now our Secretary of State has to fly to Iraq to try to convince them maybe they shouldn’t help Iran ship weapons to the Syrian government. And somehow, I think that we could have avoiding killing bin Laden for ten years without ever going to war in Afghanistan.

So 12 years on, what do we have. Lots of money wasted. Lots of lives wasted. Lots of goodwill trampled into the mud as though it meant nothing to us. But most of all: lost opportunities. Gone forever. And what did we get in return? A bunch of testosterone cases got to feel like real men. For a while.

Bill O’Reilly, mouthpiece of the Great White Male, recently came out, not from the closet silly, but almost pretty much in favor of gay marriage. Apparently he’s okay with civil unions and really doesn’t care either way. I don’t know how old his kids are, so he might end up pulling a Portman someday. According to Politco, O’Reilly said the following:

What’s next, Rush Limbaugh saying he supports women’s rights? I know that’s a pipe dream. He’s more likely to suffer an on-air aneurism (which could happen and would be truly inspirational).

As Debra Milke continues to rot in prison, the Arizona “justice” system continues to try to avoid admitting to their wrongdoing. I’ve previously written about Milke’s outrageous conviction for murder 22 years ago as well as the current efforts of the Arizona Attorney General to appeal the Ninth Circuit Court’s decision to overturn the verdict. But I can’t get enough of this case. I check every day. Naively, I continue to hope that there will be a quick resolution to this and that this poor woman will at long last be set free. I don’t think I will lose interest until she finally is released.

There have been two interesting articles about Milke in the last week or so. Over at OpEd News Barry Graham wrote, U.S. Media Helped Keep Debra Milke on Death Row for 20 Years. He learned about the case 13 years ago and tried to get some of his editors interested in the story. None were. To some extent you can understand this. Even now, after the conviction has been overturned, Milke’s story is entirely “dog bites man.” Unfortunately, what has happened to her is only too common. What makes it exceptional at this point is that she may at long last get some modicum of justice.

In Graham’s article, he fills in a couple of details about the case:

I knew that Saldate didn’t record the interview; if he had, we wouldn’t be here today. But the fact that his supervisor specifically told him to record it and he didn’t is almost unbelievable. It seems certain that his history of lying on the stand had something to do with that request. But even the recording mightn’t have been necessary if he hadn’t decided to do the interrogation alone. Everything I’ve learned about Saldate makes him seem like a very unreliable, even actively dishonest guy. But I wonder: why did the police force retain such an officer on the force? And didn’t his superiors have a duty to call all these problems to the attention of the court—especially when they learned that Saldate was the entire case against Milke?

Over at Above the Law, David Lat reported on the circus environment surrounding Milke’s trial. He reprinted an article from the time that appeared in the Arizona Republic by Brent Whiting. This is taken from the Debra Milke website:

I can’t even imagine. It is totally inappropriate, but even more: it is heartless. Judge Hendrix was about to sentence Milke to death but she turned her courtroom into a concert venue because “she wanted to hear him” and that it was “intended to relieve stress”? This story convinces me that Graham was right when he wrote that the judge was “hostile.” I might add incompetent.

Meanwhile, the wait continues.

Afterword

I found a great overview of the case up to 2009, Debbie Milke Was Convicted of Murdering Her Own Child, Now She May Win Her Freedom (or, At Least, a New Trial). Check it out if you are interested at all in this case.

I don’t know how much you’ve read about yesterday’s hearing on the Prop. 8 gay rights case. I’m trying not to read much, because it just infuriates me. But with the little that I’ve read, one thing really stands out to me: Antonin Scalia’s very un-judicial temperament. Time and again, he seemed to be leading Charles Cooper, the lawyer defending Prop. 8, around by the nose. Here is a particularly telling moment:

Mr. Cooper, let me—let me give you one—one concrete thing. I don’t know why you don’t mention some concrete things. If you redefine marriage to include same-sex couples, you must—you must permit adoption by same-sex couples, and there’s—there’s considerable disagreement among—among sociologists as to what the consequences of raising a child in a—in a single-sex family, whether that is harmful to the child or not. Some States do not—do not permit adoption by same-sex couples for that reason… I don’t think we know the answer to that. Do you know the answer to that, whether it—whether it harms or helps the child?

Basically, Scalia is saying that the Prop. 8 proponents should be saying that same-sex marriage is really bad because we don’t know if same-sex couples adopting children is bad or not. First, of course, Scalia is wrong that there is disagreement among sociologists about this matter: same-sex couples are just as good as opposite-sex couples. But just as we saw in the Obamacare hearings, Scalia seems to get all of his information from listening to Rush Limbaugh on the radio.

Apart from this, I don’t see any other justices trying to lead the attorneys along, “I think you forgot to mention…” And this isn’t the only occurrence of this. At least two other times, Scalia attempted to bail out Cooper when he was crumbling under the questioning of another judge. It was very disturbing.

None of this comes as a surprise, of course. As I wrote yesterday, Scalia always manages to twist the law to go along with his own prejudices that ossified a few decades ago. This is in keeping with a short interview that Francis Wilkinson did with Yale Constitutional Law Professor Jack Balkin. He is an expert on “originalism,” the judicial philosophy that Scalia claims to follow that says that laws only mean what people thought they meant when they were enacted. Although Balkin goes out of his way (much too far, if you ask me) to be fair to all of the originalist thinkers, he is blunt in his appraisal of the Associate Justice:

In fact, he goes on to say that originalism doesn’t really constrain constitutional argument. This is, of course, what I’ve long thought: originalism is just a convenient way to justify the conservative outcomes that most of its proponents seek.[1] But at least Thomas applies it with a bit of rigor. Scalia, like the conservative hack he is, abandons it when it interferes the least bit with what he wants to “prove.”

Antonin Scalia has gotten through most of his career with a combination of brilliance along with his reputation as a colorful character. I think this is coming to an end. His brilliance is somewhat faded and it is increasingly clear that it was never used for anything but partisan parlor tricks. Meanwhile, his “color” is more and more just the angry ravings of an old man the culture is leaving behind. Even in his own lifetime, I think he will likely see his reputation disintegrate.

Afterword

After writing this article, I came upon the following clip from Politics Nation with Al Sharpton. At the 3:00 mark, Sharpton presents a number of clips that show that right wing talkers were saying exactly the same things that Scalia was saying on the bench. In each case, the Scalia statements were after they became right wing talking point. How is it that this guy is taken as anything other than a conservative hack?

[1] Originalism is primarily a conservative doctrine, but there is increasing liberal use of it. I gather that they think a little deeper about it. Balkin provides a contrast of sorts. He says, “A conservative like Scalia might argue that the Fifth Amendment and the 14th Amendment weren’t designed to say anything about marriage.” This is to say he’s talking about very concrete things: they weren’t thinking about marriage so they didn’t mean for the law to apply to same-sex marriage. But then he says, “A liberal originalist might argue that the purpose of the 14th Amendment was to guarantee equal basic rights.” In other words, the liberal would look at what the general purpose was.

I know I’m biased, but the conservative take on this is ridiculous. It reminds me of Monty Python’s The Life of Brian where the crowd gets in an argument about Jesus’ statement, “Blessed are the cheese makers.” If Congress made a law in the 18th century that gave worker rights to those in the farm and manufacturing industries, the conservative would claim the law does not apply to computer programmers because the writers didn’t know what computers were. But the liberal would note that farming and manufacturing were the only industries at that time and thus the law was meant to apply to all workers. The conservative reading of the law is either stupid or designed to limit individual rights as much as possible. Take you pick: it all means the same thing.